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PRINCETON,  N.  J. 


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Presented  by  Mr.  Samuel  Agnew  of  Philadelphia,  Pa. 


t5A  syD  1  .U /u 

Green,  Ashbel,  1762-1848, 
The  case  of  the  General 
assembly  of  the 


/  . 


\\ 


THE    CASE 

OF 

THE    GENERAL    ASSEMBLY 

OF 

THE  PRESBYTERIAN    CHURCH 

IN  THE 

UNITED  STATES  OF  AMERICA, 

BEFORE  THE 

Supreme  Qtouxt  ot  the  Ctommontoealth  ot  Hennsglijaitfar, 

IMPARTIALLY  REPORTED 

B  Y  DISINTERE  S  TED    STENOGRAPHERS; 

INCLUDING 

ALL  THE  PROCEEDINGS,  TESTIMONY,  AND  ARGUMENTS  AT  NISI  PRIUS,  AND 
BEFORE  THE  COURT  IN  BANK, 

WITH    THE 

CHARGE  OF  JUDGE  ROGERS, 

THE  VERDICT  OF  THE  JURY, 

AKD 

THE  OPINION  OF  CHIEF  JUSTICE  GIBSON. 

THE   WHOLE   COMPILED   AND    PREPARED   FOR   THE   PRESS 


REV,  D.  Vr.XATHROP 


PHILADELPHIA: 

PUBLISHED  BY  A.   M'ELROY. 

18  39. 


Entered  accorcUng  to  act  of  Congress,  in  the  year  1839,  by 

A.  M'ELROY, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Eastern  District  of  Pennsylvania. 


PEINCETON 


'^MlEMh^' 


CO 


"Sits. 


Pa?e 

Abrogation  of  the  Plan  of  Union,  48 
Adair,  Rev.  Robert,  testimony  of,  136 
A^new,  Samuel,  testimony  of,  238 

Associate  Reformed  Church, 

Union  with,  156 

Auchincloss,  Hugh,  testimony 

of,  _  2ir,  264 

Assembly,  Jurisdiction  of,  31,32,  33,34 


Pa  so 


B 


111 


Bissell,  case  of, 

Boardman,  Rev.  Henry  A.,  tes- 
timony of,  215,  233,  264 

Breckinridge,  Rev.  Robert,  tes- 
timony of. 

Brown,  Rev.  Isaac,  testimony  of. 

Brown,  Henry,  testimony  of. 


203 
249 


Cathcart,  Robert,  D.  D.,  testi- 
mony of,  113,  141 

Citation  of  inferior  Judicatories,    49,  56 

Committee    on    State    of    the 
Church,  (1837,) 

Constitution  of  the  Presbyterian 
Church,  amended  1821,  29— 
in  evidence. 

Converse,  Rev.  Amasa,  testimo- 
ny of. 

Counsel,  names  of, 


49 


156 


144 
■   9 


D 


Davis,   Rev.  James  M.,  testimo- 
ny of,  252 
Dingee,  Charles  H.,  testimony  of,        146 
Disciphne,  Forms  of,                36,  37,  38 


£ 


Elders,  election  of,  261 
Elliott,  David,  D.  D.,  testimony 

of,  228 
Elmes,  Thomas,  «  «  251 
Evans,  Thomas,  «  "  214 
Ewing,  Mr.,  resolution  (1837,)  101 
Excinded  Synods,  creation  of,  30 
— Recognition  of,  30 — Presby- 
teries belonging  to,  45 
Excision  of  the  four  Synods,  55 


Fisher,  Samuel,  D.  D.,  testimo- 
ny of,  131,  150 

Form  of  Government,  &c..  Ex- 
tracts from,  39 


Gemmell,    James  R.,   testimony 

of,  246 

General  Assembly,  how  formed, 

&c.,  30 

General   Assembly,  Minutes   of 

1837,  40,  47,  126,  59,  261 

Gibson,  C.J.,  Opinion,  620 

Gilbert,  Rev.  Eliphalet,  testimo- 
ny of,  113,129 


H 


Hamilton,  Wm.,  testimony  of,  236 

Harris,  Wm.,M.  D.,     "  199 

Hill,  Wm.,  D.  D.,  "  109,245 

Hubbell,  Mr.,  Argument,  542 — 
Opening,  159 — On  points  of 
evidence,  40, 42, 43,  84, 93,  99, 

1^6,  213,  214,  257 


I 


Incorporation,  act  of,  28 

Ingersoll,  Mr.,  argument,  412 — 
On  points  of  evidence,  42,43, 

101,  102,  254 
Introduction,  3 


Jessup,   William,    Judge,  testi- 
mony of,  92 
Jones,  S.  B.,  Rev.,  testimony  of,  238 
Jury,  Names  of,  20 — Verdict,  529 


Krebs,  Rev.  John  M.,  statement, 
101— testimony,  185,  264 


Lathrop,   Rev.  Daniel  W.,  testi- 
mony of,  25>'» 
I.owrie,  Walter,  testimony  of,    208,  264 


CONTENTS. 


M 

Maclean,  Rev.  John,  testimony 


of. 


240, 
119, 
100, 


Mason,  Erskine,  D.  D., 
McDowell,  John,  D.  D., 
McElroy,  Archibald,  " 

McP'arli'ind,  Rev.  Francis,    " 
Meredith,  Wm.  M.,  arguments, 
265,   566 — On   points  of  evi- 
dence, 21 
Miller,  Samuel,  D.  D.,  testimo- 
ny of, 
Mitchell,  Alex.  W.,  M.  D.,  tes- 

ti^mony  of, 
Mitchell,  Joseph  B.,  testimony 

of. 
Moderator,  change  of,(1835,)112 
— duties  of,  262 — induction. 


N 


Page 

245 
158 
243 
141 
213 


257 
201 
234 
237 
223 


239 
263 


Norris,  Edward  C,  testimony  of, 
Nott,  Eliphalet,  D.  D.,  deposi- 
tion, 
Noyes,  Rev.  Varnum,  testimony 

of,  212 


O 


Organization  of  General  Assem- 
bly, rules,  223 — minutes  of 
1838,  258 


Page 

Process,  forms  of,  36,  37,  38,  39 

Protests,  55,  57,  59,  62,  70,  72,  76 

Presbyteries  of  the  four  Synods,  46 


R 


Randall,  Mr.,  arguments,  589,  619 
— opening,  20 — on  points  of  evi- 
dence,        40,  42,  43,  84,  93,  99,  118 

530 
117 


Reasons  for  new  trial, 

Relators,  election  of. 

Report  of  Committee  on  slate  of 

Church,  49 

Rogers,  J.,  charge  to  Jury,  505 
— decisions  on  points  of  evi- 
dence, 99,  101,  119,  127,  152, 

213,  214, 222,  254,  257,  260 

Report  of  the  Synod  of  W.  Reserve,     34 


S 


593 


Sergeant,  Mr.,  argument, 
Session  of  Church,  how  formed, 

&c.,  261 

Squier,  Rev.  Miles  P.,  testimony 

of,  104 

Suits,  record  of,  231,  232 

Symington,  Alexander,  testimo- 
ny of,  235 
Synod,  how  formed,  &c.,  30 
Synods,  Geneva,   Genessee,  W. 
Resei-ve,  and  Utica,  formation 
of,                                                    30, 31 


Pastoral  Letter,  219 

Patton,  Wm,,  D.U.,  testimony  of,  84 

Paul,  James  W.,  testimony  of,  249 

Phelps,  Rev.  Eliakim,  testimony 

of,  47,  150 

Philadelphia,  Third  Presbytery 

of,  dissolved,  57 

PhiUips,  Wm.  W.,  D.  D.,  testi- 
mony of,  195,  210,  264 

Plan  of  Union  (1801,)  77— Ab- 
rogation, 

Plan's  of  Union  and  Correspon- 
dence, &c., 

Pleadings, 

Plumer,  Wm.,  D.  D.,  testimony 

of. 
Potts,  Stacy  G.,  testimony  of. 

Presbytery,  how  formed,  &,c., 

Preston,  Mr.,  argument,    316 — 

on  points  of  evidence,  96, 119, 

127,  135,  254 


48 

80 
9 

224 

198 

30 


Tarr,  Elihu  D.,  testimony  of,  248 

Testimony  for  Relators,  28  to  158 

Testimony  for  Respondents,   159  to  265 
Trustees,  how  chosen,  28 

Twitchell,  Jerome,  testimony  of,         210 


W 


154 
155 


204 


Wetmore,  Rev.  Oliver,  testimo- 
ny of. 
White,  Ambrose,  testimony  of. 
White,  Rev.  Nathan  G.,  testimo- 
ny of, 

Wilson,  Samuel  B.,  D.D.,  testi- 
mony of,  200,  202 
Wilson,  Samuel  P.,  testimony  of,         206 
Wilson,  Wm.,  testimony  of,  218 
Wood,  Mr  ,  argument,  469 — on 

points  of  evidence,  93,  126 

Worrell,  Charles  F.,  testimony  of,        241 


,,t>5mRTv  OF  :-^ 


j5*^^vV 


#^uxii 


c:^'ro>A 


INTRODUCTION. 


In  preparing  for  the  press,  the  report  now  submitted  to  the 
pnbhc,  the  single  aim  of  the  editor  has  been,  accuracy  in  the  exhi- 
bition of  the  facts,  testimony,  arguments  and  decisions,  which  make 
up  the  whole  case,  as  it  was  actually  developed  in  court. 

To  accomplish  this  object,  all  that  could  be  effected,  by  unre- 
mitting perseverance  in  the  use  of  the  best  materials  for  the  pur- 
pose, has  probably  been  attained. 

No  apprehension  is  entertained  that  any  candid  man,  of  any  ec- 
clesiastical party,  will  find  occasion  to  complain  of  partiality  or 
favoritism  in  this  report. 

The  case  necessarily  involved  the  discussion,  by  distinguished 
civilians,  of  great  principles  of  law,  order,  and  constitutional  and 
natural  rights,  which  have  given  to  it  an  importance,  rarely  if  ever 
attached  to  a  judicial  investigation  in  our  country.  Eminent  law- 
yers not  connected  with  the  case,  have  even  said,  that  in  view  of 
the  extensive  range,  and  weighty  character  of  the  questions  in- 
volved, it  is  the  most  important  judicial  case,  to  be  found  on  the 
legal  records  of  the  world. 

Its  importance  is  perhaps  not  diminished  by  the  condition  in 
which  it  now  stands  on  the  records  of  the  court,  by  the  fact  that  it 
is  yet  undecided.  Whether  or  not,  this  case  in  its  present  form, 
shall  ever  be  prosecuted  to  an  ultimate  decision;  it*is  hardly  possi- 
ble, if  it  be  not,  that  other  cases  will  not  arise  involving  the  same 
principles,  and  resting,  indeed,  on  the  precise  facts  of  this  case.  So 
far,  the  case  has  elicited  two  official  decisions  in  the  same  court,  of 
a  diametrically  opposite  character,  and  involving  opposite  legal 
opinions  on  points  of  fundamental  import. 

One  of  the  parties  now  claim  of  right,  on  their  side,  the  decided 
opinion  officially  promulgated,  of  the  judge  of  the  Supreme  Court, 
who  presided  at  the  trial,  in  relation  to  the  law,  and  the  verdict  of 
a  jury  of  twelve  enlightened  freemen  on  the  fads  of  the  case,  in 
coincidence  with  the  opinion,  as  understood  and  admitted  by  all 
parties,  of  another  judge  of  the  same  court;  while  the  other  side, 
with  equal  truth,  claim  the  opposite  opinion,  both  of  the  law  and  the 
facts,  of  the  three  other  judges,  being  the  majority,  and  including 
the  chief  justice  of  the  same  high  court;  the  latter  in  the  regular 
course  of  legal  authority,  suspending  the  verdict  of  the  jury,  super- 


ceding  the  former  legal  opinion,  and  granting  to  the  defendants,  the 
privilege  of  a  new  trial. 

Under  these  circumstances,  not  only  the  two  large  bodies,  each 
claiming  to  be  "the  Presbyterian  Church  in  the  United  States," 
but  the  whole  community,  and  especially  all  religious  denominations 
in  the  country,  as  well  as  all  connected  with  the  legal  profession 
are  interested  to  know  the  facts,  and  the  arguments  on  which  these 
opposite  conclusions  are  predicated,  while  many  are  desirous,  ir- 
respective of  any  interest  in  the  result,  to  be  acquainted  with  the 
testimony  relating  to  the  controversy,  and  to  see  the  arguments,  in 
a  case  of  this  magnitude,  of  gentlemen,  so  distinguished  in  their 
profession,  as  those  who  advocated  the  cause  of  the  respective 
parties  in  this  suit. 

To  make  the  work  as  perfect  as  possible  in  the  particulars  pro- 
posed, no  practicable  pains  have  been  spared,  and  a  much  longer 
period  has  been  occupied,  ihan,  with  less  regard  to  accuracy, 
"would  have  been  requisite,  and  particularly,  has  the  assistance  of 
the  counsel  in  the  cause  been  obtained,  whenever  it  could  be,  in  rela- 
tion to  that  which  pertained  respectively  to  their  own  part  of  the  case. 
In  this  respect  special  acknowledgments  are  due  to  Josiah  Randall 
and  George  Wood,  Esqs.,  for  the  relators,  and  F.  W.  Hubbell,  Esq., 
for  the  respondents  at  Nisi  Prius,  and  to  Wm.  M.  Meredith  and  F.  W. 
Hubbell,  Esqrs.,  for  the  same  parties  respectively,  before  the  (>ourt 
in  Bank.  The  argument  of  Mr.  Randall  before  the  Court  in  Bank 
is  given  only  in  the  form  of  a  succint  statement,  by  that  gentleman, 
of  the  points  made  in  argument,  this  course  having  been  preferred 
by  him,  as  his  absence,  when  it  was  needed  for  the  press,  prevented  a 
revision  of  his  argument  as  reported  by  the  stenographer. 

It  may  not  be  inappropriate  to  note  the  following  facts  con- 
nected with  the  early  history  of  the  Presbyterian  Church;  facts  un- 
questioned, it  is  supposed,  by  all  parties  in  the  church,  and  which 
may,  perhaps,  to  those  unacquainted  with  them,  throw  some  light 
on  the  occasion  of  the  present  divisions. 

As  early  as  the  6th  of  April,  1691,  the  Presbyterian  and  Con^egational  deno- 
minations in  Great  Britain,  consummated  a  union  of  the  two  denominations,  adopting- 
what  they  called  the  "Heads  of  Agheement,"  embracing  a  few  cardinal  prin- 
ciples, wiiich  were  to  govern  them  in  their  fraternal  intercourse. 

This  Presbyterian  and  Congregational  Union,  sent  over  one  of  their  number,  Mr. 
M'Kemie,  as  a  missionary  to  the  new  settlements  in  America,  who,  in  connexion 
•with  Messrs.  M'Nish,  Andrews,  Hampton,  Taylor,  Wilson  and  Davis,  in  1704,  form- 
ed the  first  presbytery  in  this  country,  the  presbytery  of  Philadelphia.  This  pres- 
bytery was  formed  upon  the  principles  which  governed  the  London  Association, 
by  which  Mr.  M'Kemie  was  sent,  and  was  composed  partly  of  Presbyterian  and 
partly  of  Congregational  ministers  and  churches.  [Mr.  Andrews,  the  first  pastor  of 
the  first  church  in  Philadelphia,  was  a  decided  Congregational  Presbyterian.  That 
church  was  under  the  care  of  the  presbytery  sixty-four  years,  before  they  elected 
ruling  elders.]  This  state  of  things  continued  until  1716,  when  the  Synod  of  Phila- 
delphia was  formed  out  of  the  presbyteries  of  Philadelphia,  New  Castle,  Snow 
Hill  and  Long  I.sland,  the  last  three  having  grown  up  after  the  formation  of  the  first. 

The  Church  of  Scotland,  instead  of  imbibing  those  principles  which  resulted 
in  the  union  of  1691,  in  London,  and  in  the  establishing  of  a  modified  Presbyte- 
rianism  in  America,  solemnly  bore  their  testimony  against  religious  toleration. 

In  1724,  those  ministers  from  Scotland,  who,  in  the  language  of  Dr.  Miller,  "were 
desirous  to  carry  into  effect  the  system  to  wliich  they  had  been  accustomed  in  all 
its  extent  and  strictness,"  began  to  insist  that  the  entire  system  of  the  Scottish 


church  be  received  in  this  country.  This  led  to  the  adopting  act  of  1729,  which 
embodied  the  liberal  principles  of  1691,  in  such  language  as  follows  :  "Although 
the  synod  do  not  claim,  or  pretend  to  any  authority  of  imposing  our  faith  on  other 
men's  consciences,  but  do  profess  our  just  dissatisfaction  with,  and  abhorrence  of 
sucli  impositions,  and  do  not  only  disclaim  ali  legislative  power  and  authority  in  the 
chtircli,  being  willing  to  receive  one  another  as  Christ  has  received  us  to  the  glory 
of  God,  and  admit  to  fellowship  in  church  ordinances,  all  such  as  we  have  grounds 
to  believe  that  Christ  will  at  last  admit  to  the  kingdom  of  heaven,  yet  we  aie  un- 
doubtedly obliged  to  take  care  that  the  faith  once  delivered  to  the  saints,  be  kept 
pure  and  uncorrupt  among  us,  and  do  therefore  agree,  that  all  tlie  ministers  of  this 
synod,  or  that  shall  hereafter  be  admitted  to  this  s)  nod,  shall  declare  their  agree- 
ment in,  and  approbation  of  the  Confession  of  Faith,  with  the  Larger  and  Shorter 
Catechisms  of  the  Assembly  of  divines  at  Westminster,  as  being  in  all  essential  and 
necessary  articles,  good  forms  and  sound  words,  and  systems  of  Christian  doctrine,  &c. 
And  we  do  also  agree,  that  the  presbyteries  shall  take  care  not  to  admit  any 
candidate  but  what  declares  his  agreement  in  opinion  with  all  the  essential  and 
necessary  articles  of  said  Confession.  And  in  case  any  minister,  or  any  candidate 
shall  have  any  scruples  with  regard  to  any  article  of  said  Confession  or  Catechisms, 
he  shall  declare  his  sentiments  to  the  presbytery  or  synod,  who  shall,  notwithstand- 
ing, admit  him  to  the  exercise  of  the  ministry  within  our  bounds,  if  they  shall  judge 
his  scruples  or  mistakes  to  be  only  about  articles  not  essential  and  necessary  in 
doctrine,  worsliip,  or  government.  And  the  synod  do  solemnly  agree,  that  none  of 
us  will  traduce  or  use  any  opprobrious  terms  towards  those  who  differ  from  us  in 
those  extra  essential  and  not  necessary  points  of  doctrine,  but  treat  them  with  the 
same  friendship,  kindness  and  brotherly  love,  as  if  nothing  had  happened." 

Tn  1730,  an  increased  determination  to  the  more  rigid  forms  of  adoption  was  ma- 
nifested by  the  presbytery  of  New  Castle,  by  the  presbytery  of  Donegal,  in  1732, 
and  by  a  majority  of  the  synod,  in  1736,  which  met  with  such  opposition  as  to  re- 
sult in  the  great  schism,  of  1741,  and  the  organization  of  the  Synod  of  New  York, 
in  1745. 

In  1758,  the  Synods  of  New  York  and  Philadelphia  were  united  ;  and  in  the  6th 
article  of  their  union,  they  agreed  to  adopt  the  Confession  of  Faith,  Catechisms  and 
Directory,  as  they  had  been  adopted  in  1729. 

In  1766.  eight  years  after  the  union  of  the  synod,  under  the  name  of  the  Synod 
of  Xew  York  and  Philadelphia,  that  body  proposed  a  convention  of  delegates  of  the 
pastors  of  the  Congregational,  Consociated  and  Presbyterian  Churches  in  North 
America,  wliich  was  held  amiually  for  ten  years,  when  it  was  Interrupted  by  the 
American  Revolution.  In  1788,  the  General  Assembly  was  organized,  and  in  1790, 
the  Assembly,  "  being  peculiarly  desirous  to  renew  and  strengthen  every  bond  of 
union  between  brethren  so  nearly  agreed  in  doctrine  and  forms  of  worship,  as  the 
Presbyterian  and  Congregational  Churches  evidently  are,  do  resolve,  that  the  Con- 
gregational churches  in  New  England,  be  invited  to  renew  their  annual  convention 
with  the  clergy  of  the  Presbyterian  Church."  This  resolution  resulted  in  the  plan 
of  correspondt-nce  with  the  Congregational  bodies  of  New  England,  which  still 
exists,  and  which  provides  that  "every  preacher  travelling  from  one  body  to  the 
other,  and  properly  recommended,  shall  be  received  as  an  authorized  preacher  of 
the  gospel,  and  cheerfully  taken  under  the  patronage  of  the  presbytery  or  associa- 
tion, within  whose  limits  he  shall  find  employment  as  a  preacher." 

In  1801,  the  two  denominations  produced  another  Plan  of  Union,  which  is  the 
one  so  often  alluded  to  in  this  trial,  and  is  fully  spread  out  in  the  following  pages. 

One  or  two  errors  in  regard  to  matters  of  fact,  obviously  unde- 
signedly connmitted,  during  the  trial,  although,  of  course,  the  editor 
is  not  accountable  for  them,  yet,  as  they  cannot  affect  the  ca.se,  or 
be  regarded  as  interfering  with  it,  it  may  not  be  amiss  to  correct. 

When  Judge  Rogers  inquired,  if  the  assent  of  the  General  Asso- 
ciation of  Connecticut  had  been  obtained  to  the  repeal  of  the  Plan 
of  Union,  it  was  replied,  that  "  a  communication  had  been  sent  to  the 
Association  requesting  such  consent,  but  no  answer  had  been  re- 
ceived." The  fact  was  that  a  resolution  was  adopted  by  the  Assem- 
bly to  that  effect,  but  the  request  was  not  presented  to  the  Associa- 


tion,  the  commissioners  from  the  Assembly  not  being  furnished  with 
the  minutes  for  that  year. 

An  error  of  some  of  the  counsel,  in  regard  to  the  profession  of 
Presbyterial  reports,  may  be  corrected  by  ihe  following  statement. 

The  Presbyterial  rejjorts  are  made  out  according  to  forms  pre- 
scribed and  sent  down;  and  the  few  presbyteries  which  add  to  that 
form  a  designation,  (Con.)  for  Congregational,  do  so  to  show  that 
certain  ministers  are  pastors  of  (congregational  Churches,  having 
no  connexion  with  the  presbytery,  altogether  unlike  the  class  of 
churches  alluded  to  in  the  testimony  as  "  initiate,  &c.,'*  in  connexion 
with  the  excluded  synods;  which  churches,in  the  presbyteries  alluded 
to,  are  as  fully  under  the  care  of  the  presbytery,  as  any  others  in 
their  connexion.  These  presbyteries  do  not  report  at  all  the 
churches  not  connected  with  them,  although  some  of  their  mem- 
bers (ministers)  may  be  pastors  of  such  churches.  For  example, 
in  the  Presbytery  of  Portage,  Rev.  Giles  Doolittle  is  reported  as 
SS.,  (stated  supply,)  but  the  church  which  he  supplies,  Hudson,  a 
Congregational  Church,  is  not  reported  at  all.  So  with  Rev, 
Joseph  Merriam  of  the  same  presbytery,  reported  as  pastor,  but  his 
church  (Randolph)  is  not  reported  at  all. 

It  is  perhaps  due  to  the  respective  parties,  and  may  elucidate 
the  state  and  prospects  of  the  case,  to  give  the  subjoined  fact : — 

In  the  Assembly,  which  met  in  the  first  church,  May  20th,  1839,  Judge  Darhng-, 
from  the  committee  of  twelve,  appointed  on  the  21st  day  of  May,  1838,  "  to  advise 
and  direct  in  respect  to  any  legal  questions  and  pecuniary  interests  that  might  require 
attention  during  the  ensuing  year,"  reported  that  previous  to  the  trial  before  Judge 
Rogers,  at  Nisi  Prius,  the  committee  were  informed  by  one  of  their  counsel,  that 
John  K.  Kane,  Esq.,  one  of  the  trustees  of  the  General  Assembly,  and  who  was  of 
counsel  for  the  respondents,  had  stated  to  him  that  those  he  represented  were  dis- 
posed to  adjust,  amicably  and  equitably,  all  matters  in  controversy  in  this  cause, 
and  had  requested  him  to  ascertain  what  terms  the  committee  would  propose,  as  a 
basis  for  an  amicable  division  of  the  Presbyterian  Church,  and  the  final  adjustment 
of  all  the  matters  in  dispute  between  the  Reformed  and  Constitutional  General 
Assemblies.  Keeping  in  view  the  resolution  of  the  General  Assembly  of  1838,  viz.: 
"  That  this  body  is  willing  to  agree  to  any  reasonable  measures  tending  to  an  ami- 
cable adjustment  of  the  difficulties  in  the  Presbyterian  churcli,  and  will  receive,  and 
respectfully  consider,  any  propositions  made  for  that  purpose," — they  waived  all 
exceptions  which  might  have  been  taken  to  enter  into  negotiation  with,  or  to  making 
propositions  to,  an  irresponsible  individual,  and  promptly  requested  their  counsel 
to  furnish  Mr.  Kane  with  a  copy  of  the  following  articles. 

ARTICLES  OP  AGREEMENT  PROPOSED. 

"In  order  to  secure  an  amicable  and  equitable  adjustment  of  the  difficulties  exist- 
ing in  the  Presbyterian  church  in  the  United  States  of  America,  it  is  hereby  agreed 
by  the  respective  parties,  that  the  following  shall  be  articles  on  which  a  division 
shall  be  made  and  continued. 

Article  I.  The  successors  of  the  body  which  held  its  sessions  in  Ranstead  Court, 
shall  hereafter  be  known  by  the  name  and  style  of  "  The  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America  :"  The  successors  of  the 
body  which  held  its  sessions  in  the  First  Presbyterian  Church,  shall  hereafter  be 
known  by  the  name  and  style  of  "  The  General  Assembly  of  the  American  Presby- 
terian Church." 

Article  II  Joint  application  shall  be  made  by  the  parties  to  this  agreement,  to 
the  legislature  of  Pennsylvania,  for  a  charter  to  incorporate  trustees  of  each  of  the 
respective  bodies,  securing  to  each  the  immunities  and  privileges  now  secured  by 
the  existing  charter  to  the  trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  in  tlie  United  States  of  America  ;  subject,  nevertheless,   to  the  limitations 


and  articles  herein  agreed  on  ;  and  when  so  obtained,  the  existing  charter  shall  be 
surrendered  to  the  state. 

Article  III.  Churches,  ministers,  and  members  of  churches  as  well  as  presby- 
teries, shall  be  at  fidl  liberty  to  decide  to  which  of  the  said  Assemblies  they  will  be 
attached  ;  and  in  case  the  majoi-ity  of  legal  voters  of  any  congregation  shall  prefer 
to  be  connected  with  any  presbyterjf  connected  with  the  Assembly  to  whicli  their 
presbytery  is  not  attached,  they  shall  certify  the  same  to  the  stated  clerk  of  the 
presbytery,  which  they  wish  to  leave,  and  their  connexion  witli  said  presbytery 
shall  thenceforth  cease. 

Article  IV.  Tiie  Theological  Seminary  of  Princeton,  the  Western  Theological 
Seminary,  the  Board  of  Foreign  Missions,  the  Board  of  Domestic  Missions,  the 
Board  of  Education  with  the  funds  appertaining  to  each,  shall  be  the  properly  and 
subject  to  the  exclusive  control  of  the  body  which  according  to  this  agreement, 
shall  be  chartered  under  the  title  of  **  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America." 

This  agreement  shall  not  be  considered  a  secession  on  the  part  of  either  body, 
from  the  Presbyterian  Church  in  the  United  States  of  America,  but  a  voluntary  and 
amicable  division  of  this  church  into  two  denominations,  each  retaining  all  the  eccle- 
siastical and  pecuniary  rights  of  the  whole  body,  with  the  limitations  and  qualifica- 
tions in  the  above  articles  specified." 

The  only  reply  which  the  committee  x-eceived  to  these  propositions  was,  that 
they  could  not  be  accepted,  but  that  the  Old  School  party  would  agree  that  the 
members  of  the  Constitutional  General  Assembly,  and  all  who  adhered  to  this 
General  Assembly,  should  be  at  liberty  to  leave  the  Presbyterian  Church  without 
molestation  from  them,  and  that  they  should  not  be  called  Seceders. 

The  following  appears  on  the  minutes  of  the  Assembly  which 
met  in  Ranstead  Court,  May  21,  1839: — 

Be  it  resolved  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America, 

I.  That  this  body  considers  itself  and  the  church  at  large,  bound,  as  both  have 
been,  not  only  willing,  but  desirous  to  adjust  all  claims  against  the  coi-porate  pro- 
perty of  the  church,  xvhether  legal  or  equitable,  in  the  most  prompt,  fair,  and 
liberal  manner. 

II.  That  tliis  is  especially  the  case  touching  any  claims  which  may  exist  on  the 
partofthefour  Synods  of  Utica,  Geneva,  Genessee,  and  Western  Reserve,  declared 
in  1837  to  be  no  part  of  the  Presbyterian  Church  :  or  on  the  ])art  of  those  wiio 
seceded  from  the  church  in  1838  ;  or  on  the  part  of  any  body  constituted  out  of  the 
whole  or  any  part  of  these  elements.  And  that  in  regard  to  all  and  each  of  tliest; 
bodies  and  persons,  the  Assembly  will  faithfully  adhere  to  any  pledge  or  promise, 
express  or  implied,  which  it  can  justly  be  construed  ever  to  have  made,  arid 
will  fulfil  every  expectation  which  it  knowingly  allowed  to  be  clierislied. 

III.  The  trustees  of  the  Assembly  are  hereby  authorised  and  requested  to  do  on 
the  part  of  this  Assembly,  should  occasion  offer,  whatever  is  lawful,  competent 
and  equitable  in  the  premises,  conformable  to  tlie  priiiciples  and  in  the  manner 
heretofore  laid  down*  in  the  minutes  of  this  Assenib  y  for  1837  and  1838,  so  far  iis 
relates  to  the  corporate  property  of  the  diurch,  or  any  equities  springing-  out  of 
the  same. 

IV.  With  reference  to  all  institutions,  corporations,  congregations,  and  other 
public  persons  or  bodies  in  coiuiexion  with  us,  but  holding-  properly  for  ecclesias- 

*  An  act  was  adopted  by  the  Assembly  in  Ranstead  Court,  May  30th,  ISJi! 
directing  that  minorities  of  presbyteries,  sessions,  and  chui-ches  should  be  consi- 
dered as  the  true  presbyteries,  in  cases  when  the  majority  "  decline  or  fail  to  adhere 
to  the  Presbyterian  Church  on  the  basis  of  the  Assemblies  of  1837  and  1838."  Tlie 
following  clause  of  sec.  5  of  that  act  is  all  that  1  find  in  the  minutes  of  that  bodv  to 
which  allusion  can  be  made,  in  these  resolutions,  subsequent  to  tiie  excindin"'-  re- 
solutions of  1837  ; — 

"In  regard  to  the  temporal  interests  of  the  churches,  and  tlie  difficulties  w.'iich 
may  arise  on  their  account,  the  Assembly  advise  tliat,  on  the  one  hand,  great 
liberality  and  generosity  should  mark  the  whole  conduct  of  our  people,  and  espe- 
cially in  cases  where  our  majorities  in  the  churches  are  very  large,  or  our  minori- 
ties are  very  small  :  while  on  the  other  hand,  it  would  aclvise,  that  pruvideiui:J 
advantages,  and  important  rights,  ought  not  in  any  case  to  be  lightly  thiou  a 
away."— [Ed.] 


8 

tical  purposes  or  for  religious  and  benevolent  uses,  which  property  is  not  subject 
to  the  control  of  the  Assembly,  althoug'h  the  said  persons,  institutions  or  congi-ega- 
tions  may  be — in  all  such  cases  where  difficulties  relating-  to  property  have  arisen 
or  shall  arise,  in  consequence  of  the  long-  and  painful  disorders  and  divisions  in  our 
church,  we  advise  all  our  members  and  friends  to  act  on  the  general  principles 
heretofore  laid  down,  and  with  the  spirit  of  candour,  forbearance,  and  equity 
which  has  dictated  this  act. 

V.  The  Assembly  reiterates  the  declaration  that  its  chief  desire,  on  all  this  part 
of  our  church  troubles,  is  to  do  even  and  ready  justice  to  and  between  all  persons 
and  interests  over  which  it  has  any  contiol  or  in  reg-ard  to  which  it  has  any  duty  to 
perform. 

Having  endeavoured  faithfully  to  execute  the  task,  reluctantly 
assumed  at  the  earnest  solicitation  of  others,  and  at  an  expense  of 
time  and  a  sacrifice  of  other  interests,  which,  had  they  been  antici- 
pated, would  certainly  have  prevented  the  attempt,  I  might  consider 
myself  released  from  any  further  obligation  respecting  it.  But  I 
cannot  readily  dismiss  the  reflection,  that  in  preparing  these  pages 
I  have  been  occupied  about  controversies,  the  beihgerent  contests 
of  brethren,  with  whom  I  have  been  associated  in  the  same  branch 
of  the  church  of  the  Prince  of  Peace,  for  about  twenty  years,  and 
for  more  than  fifteen  years  in  the  ministry  of  reconciliation,  in  the 
same  church.  With  many  of  those  now  ranged  in  the  one  and  the 
other  of  these  "hostile  bnnds,"  I  have  in  former  years  "taken 
sweet  counsel,"  as  together  we  contemplated  the  mild  but  rich  glo- 
ries of  the  gospel  of  peace,  or  concerted  measures  for  extending  its 
benign  ministry  among  the  poor  and  perishing.  If  any  choose  to 
call  it  weakness,  I  would  not  therefore  wish  to  conceal  the  fact,  that 
though  not  easily  moved  to  tears,  I  have,  more  than  once,  wept 
over  this  painful  scene  of  contention  and  strife.  Compelled,  in  the 
revision  of  the  several  portions  of  the  following  work,  to  have  the 
subjects,  and  the  occasions  of  the  strife  passing  under  my  notice, 
bow  often  have  I  most  earnestly  desired  to  reach  the  hearts  of 
those  thus  ranged  in  hostility,  with  the  expostulation,  "  Sirs,  ye  are 
brethren !" 

Whatever  may  be  the  present  aspect  of  the  controversy,  what- 
ever its  immediate  results,  whatever  developments  of  the  imperfec- 
tions of  good  men,  it  may  occasion,  or  whatever  unveiling  of  the 
deformities  of  bad  men,  in  the  church;  JEHOVAH  will  ultimately 
vindicate  the  cause  of  truth  and  righteousness.  Thai  is  his  cause. 
Those  who  are  sincerely  and  intelligently  associated  with  that 
cause,  devoted  to  its  interests,  consecrated  to  its  advancement; 
they  shall  ultimately  triumph.  That  all,  who,  from  any  motive,  shall 
look  into  these  pages,  may  be  led  to  "pray  for  the  peace  of  Jeru- 
salem," and  may  "prosper"  with  those  "that  love  her,"  is  the  sin- 
cere prayer  of  their  servant  for  Christ's  sake, 

D.  W.  LATHROP. 


THE  CASE 

OF  "  THE  GENERAL  ASSEMBLY  OF  THE  PRESBYTERL\N  CHURCH 
IN  THE  UNITED  STATES  OF  AMERICA," 

BEFORE 

THE  SUPREME  COURT 

OF  THE  COMMONWEALTH  OF  PENNSYLVANIA. 


QUO  WARRANTO. 


COUNSEL. 

For  the  Relators, 

JOSTAH  RANDALL,      '?    f  p,-,  ^  ,  ,  ■      i?       • 
WM.  M.  MEREDITH,  ^  of  I'hilade/phia,  Esquires. 

GEORGE  WOOD,  ofNeiu  York,  Esquirt. 

For  tht  Respondents, 
F.  W.  HUBBELL,  ") 

JOSEPH  R.  mGERSOLUiofFhiladelphia,  Esquires. 
JOHN  SERGEANT,  3 

WM.  C.  PRESTON,  of  South  Carolina,  Esquire. 


The  Commonwealth  at  the  suggestion"^ 
of  Jamf.s  Todd,  John  R.  Neff,  F.  A. 
Raybold,  Geoiibe  W.  M'Clelland, 
William     Darling,      and    Thomas 
Fleming,  y 

vs. 

AsHBEL  Green,  William  LaTta, 
Thomas  Bradford,  Solomon  Allen, 
and  Cornelius  C.  Cuiler.  J 


Of  July  Term, 
1838.  No.  60. 


IN  THE  SUPREME  COURT  OF  PENNSYLVANL\,  FOR  THE  EASTERN 

DISTRICT. 

City  and  County  of  Philadelphia,  ss. 

James  Todd,  John  R.  Neff,  Frederick  A.  Raybold,  George  W.  M'Clelland,  Wil- 
liam Darhng  and  Thomas  Fleming,  who  sue  for  the  Commonwealth  in  this  behalf, 
come  here  into  the  Supreme  Court  for  the  Eastern  District  of  Pennsylvania,  and  for 
the  said  Commonwealth  give  the  court  here  to  understand  and  be  informed,  that 
Ashbel  Green,  William  Latta,  Thomas  Bradford,  Solomon  Allen  and  Cornelius  C. 
Cuyler,  all  of  the  city  and  county  of  Philadelphia,  since  the  tv/enty-fourth  day  of 
May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-eight,  have 
exercised  and  do  still  exercise  the  franchises  and  privileges  of  corporators,  within 
the  said  city  and  county,  without  lawful  authority,  namely,  the  franchises  and  pri- 
vileges of  trustees  of  a  certain  corporation,  called  and  known  by  the  name  of 
Trustees  of  the  General  Assembly  of  the  Presbyterian  church  in  the  United  States 
of  America:  That  on  the  day  and  year  last  aforesaid,  the  above  named  J.ames  Todd, 
John  R.  Neff,  Frederick  A.  Raybold,  George  W.  M'Clelland,  William  Darling  and 
Thomas  Fleming,  were  in  due  and  regular  form  of  law,  elected  trustees  of  the  said 

2 


14 

corporation,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  agreeably  to  the  provisions  of  an  act  of  assembly,  passed  on  the 
twenty-eighth  day  of  March,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  ninety-nine,  entitled,  "  An  act  for  incorporating  the  trustees  of  the  Ministers 
and  Elders  constituting  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America,"  but,  notwithstanding  the  said  election,  they  the  said 
Ashbel  Green,  William  Latta,  Thomas  Bradford,  Solomon  Allen  and  Cornehus  C. 
Cuyler,  have  for  the  time  aforesaid  used,  and  still  do  use  the  franchises,  offices, 
privileges  and  liberties  aforesaid,  and  during  the  said  time  have  usurped  and  do 
usurp  upon  the  Commonwealth  therein,  to  the  great  damage  and  prejudice  of  the 
constitution  and  laws  thereof.  Whereupon  the  said  relators  for  the  said  Common- 
wealth, do  make  suggestion  and  complaint  of  the  premises,  and  pray  due  process 
of  law  against  the  said  Ashbel  Green,  William  Latta,  Thomas  Bradford,  Solomon 
Allen  and  Cornelius  C.  Cuyler,  in  this  behalf  to  be  made,  to  answer  to  the  said 
Commonwealth  by  what  warrant  they  claim  to  have,  use  and  enjoy  the  franchises 
and  privileges  aforesaid. 

29th  May,  1838.  .T.  Randall, 

W.  M.   Mekedith, 

For  the  Relators. 


City  of  Philadelphia,  ss. 

Frederick  A.  Raybold,  of  the  city  of  Philadelphia,  being  duly  affirmed,  says, 
that  the  facts  set  forth  and  contained  in  the  foregoing  suggestion  are  true  to  the 
best  of  his  knowledge,  judgment,  information  and  belief. 

F.  A.   Raybold. 

Affirmed  and  subscribed  this  29th 
May,  1838,  before  me, 
PjiTER  Hat,  Alderman. 

Writ  of  quo  warranto  allowed  on  special  cause  shown  the  31st  May,  1838,  be- 
ing returnable  1st  Monday  in  July  next. 

John  B.  Gibson. 
Filed  June  2,  1838.     Exit.  June  2,  1838. 


Commonwealth  of  Pennsylvania,  Eastern  District,  ss. 

The  Commonwealth  of  Pennsylvania,  to  the  Sheriff  of  Philadelphia  county, 
greeting:  We  command  jou  that  you  summon  Ashbel  Green,  William  Latta, 
Thomas  Bradford,  Solomon  Allen  and  Cornelius  C.  Cuyler,  so  that  they  be  and 
appear  before  our  Supreme  Court  of  the  Commonwealth,  for  the  Eastern  District 
thereof,  to  be  holden  at  Philadelphia,  on  the  first  Monday  of  July,  A.  D.  1838,  and 
then  and  there  to  show  by  what  authority  they  claim  to  exercise  the  office  of  trus- 
tees of  a  certain  c(,rporation,  called  and  known  by  the  name  of  Trustees  of  the 
General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America,  iu 
the  county  of  Philadelphia,  or  to  show  by  what  authority  they  exercise  within  the 
said  county,  the  liberties  and  franchises  following  to  wit :  "  That  since  the  24th  day 
of  May,  A.  D.  1838,  have  exercised  and  still  do  exercise  the  franchises  and  privileges 
of  corporators  within  the  said  city  and  county  of  Philadelphia,  without  lawful  au- 
thoi'ity,  namely,  the  franchises  and  privileges  of  trustees  of  a  certain  corporation, 
called  and  known  by  the  name  of  the  Trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  of  the  United  States  of  America,  and  have  you  then  there 
this  writ. 

j-  j_  g  1         Witness  the  honourable  John  B.  Gibson,  Chief  Justice  of  the  said 
'■'■■'  Court,  at  Philadelphia,  second  day  of  June,  A.  D.  1838. 

Joseph  Smith,  Prothonotary. 

Endorsed. 

Served  by  leaving  a  copy  of  the  within  writ  at  the  residence  of  Ashbel  Green 
and  Thomas  Bradford,  in  the  presence  of  an  adult  member  of  his  family,  on  the 
22d  day  of  June,  1838. 

Served  by  giving  Solomon  Allen  and  Cornelius  C.  Cuyler,  defendants,  notice  of 


15 

the  contents  of  the  writ,  and  by  giving  them  a  true  and  attested  copy  thereof,  on 
the  22d  day  of  June,  1838. 

So  answers, 

Amos  Phtllips,  D.  S. 

Jno.  G.  Watmough,  Sheriff. 


The  Commonwealth  at  the  suggestion"^ 

of  James  Todd,  and  al.  | 

vs.  [  Supreme  Court, 

Ashbel  Green,  William  Latta,  Thomas  f 

Bradford,  Solomon  Allen  and  Cor-  j       July  1838,     No.  60. 

nelius  C.  Cuyler.  J 

Enter  my  appearance  for  the  defendants,  de  bene  esse,  with  reservation  of  all 
objections,  because  of  the  writ  being  returnable  on  a  day  in  vacation. 

J.  K.  Kane,  for  defendants. 
Philada.  3d  July,  1838. 
To  the  Prothonotary,  S.  C.  E.  D. 


^n°"!!^- ^"^^''^^  1  Supreme  Court, 

Todd  and  al.  V- 

^        ^*-       ,  f        July,  1838.     No.  60. 

Green  and  al.  J  ■' 

Enter  rule  on  defendants  to  plead  in  four  weeks  or  judgment.     3d  July,  1838. 
P,  S.  C.  Meredith, 

for  Com. 
Filed  July  3d,  1838. 

Plea  of  Ashbel  Green. 
In  the  Supreme  Court  of  the  Commonwealth  of  Pennsylvania,  for  the  Eastern  Dis- 
trict, of  the  term  of  July,  1838.  No.  60. 
And  now,  this  thirty-first  day  of  July,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-eight,  comes  the  said  Ashbel  Green,  by  John  K.  Kane, 
his  attorney;  and  protesting  that  the  suggestion  filed  in  this  case,  is  altogether  in- 
sufficient in  law,  and  that  he  need  not,  according  to  the  law  of  the  land,  to  make 
answer  thereunto ;  nevertheless,  for  a  plea  in  this  behalf  he  saith,  that  the  said 
commonwealtii  ought  not  to  implead  him  by  reason  of  the  premises  in  the  said 
suggestion  set  forth,  because  he  saith,  that  by  the  first  section  of  an  act  of  assembly 
of  this  commonwealth,  passed  the  twenty-eighth  day  of  March,  A.  D.  1799,  enti- 
tled An  act  for  incorporating  the  trustees  of  tlie  ministers  and  elders  constituting 
the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America, 
this  defendant  and  certain  other  citizens  of  this  commonwealth,  were  made,  de- 
clared and  constituted  a  corporation  and  body  politic  and  corporate  in  law  and  in 
fact  to  have  continuance  for  ever,  by  the  name  style  and  title  of  Trustees  of  the 
General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America; 
by  force  of  which  said  act  of  assembly,  lie  saith  that  he  became  lawfully  authorized 
and  entitled  to  exercise  with  his  associates,  in  that  behalf  lawfully  constituted,  the 
office  of  one  of  the  trustees  of  the  General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America,  and  the  franchises,  liberties  and  privileges  there- 
unto belonging  and  appertaining,  within  the  city  and  county  of  Philadelphia.  And 
he  further  in  fact  saith,  that  he  did  thereupon  accept  and  take  upon  himself  the  said 
office,  and  that  he  liath  ever  since,  and  as  well  after  as  before  the  twenty-fourth  day 
of  May,  A.  D.  1838,  exercised  and  continued  to  exercise  the  same  in  the  city  and 
county  of  Philadelphia,  by  virtue  of  the  said  act  of  assembly  of  this  commonwealth ; 
all  which  he  is  ready  to  verify,  without  this,  that  on  the  twenty-fourth  day  of  May, 
A.  D.  1838,  or  at  any  other  time  before  or  since,  the  relators  or  any  of  them  were 
in  due  and  regular  form  of  law  elected  ti'ustees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  as  they  have  suggested  to 
this  honourable  Court.  And  without  this,  that  by  reason  of  any  matter  or  thing 
whatsoever,  the  said  office  of  this  defendant  and  his  right  to  have,  exercise  and 
enjoy  the  same,  together  with  the  liberties,  franchises  and  privileges  thereunto  be- 


16 

longine:  and  appertaining',  have  been  in  any  wise  vacated,  detemiined  or  abridged. 
V/lierefore,  this  defendant  prays  judgment,  and  that  the  office,  liberties,  franchises 
and  privileges,  by  him  herein  claimed  as  aforesaid,  may  be  adjudged  and  allowed 
to  Jiim,  and  that  he  may  be  dismissed  and  discharged  by  the  court  here,  of  and  from 
the  premises  above  charged  upon  him,  &c. 

J.  K.  Kane, 
Altorneij  for  defendant . 
Filed  July  31,  1838, 


Plea  of  Thomas  Bradford. 

In  the  Supreme  Court  of  the  Commonwealth  of  Pennsylvania,  for  the  Eastern  Dis- 
trict, of  the  term  of  July,  A.  D.  1838.    No.  60. 

And  now,  tliis  thirty-first  day  of  July,  in  the  year  of  our  Lord,  one  thousand 
eight  hundred  and  tiiirty-eigiit,  the  said  Thomas  Bradford,  one  of  the  above  named 
defendants,  in  liis  proper  person,  comes  and  protesting  that  tlie  suggestion  filed  in 
this  case,  is  altogether  insufficient  in  law,  and  that  he  need  not,  according  to  the 
laws  of  the  Lind,  to  make  answer  thereto ;  nevertheless,  for  a  plea  in  this  behalf  he 
saith,  that  the  commonwealth  ought  not  to  implead  him,  by  reason  of  the  premises 
in  the  said  suggestion  set  forth,  because  he  saitli,  that  on  tlie  twenty-seventh  day  of 
May,  A.  D.  1822,  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  then  holding  its  session  in  the  State  of  Pennsylvania,  to  wit,  in 
the  city  of  Philadelphia,  did,  according  to  the  provisions  of  an  act  of  Assembly  of 
this  Commonwealth,  passed  the  twenty-eighth  day  of  March,  A.  D.  1799,  entitled 
*'  An  act  for  incorporating  the  Trustees  of  the  Ministers  and  Elders  constituting 
the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica," in  due  and  regular  form  of  law,  elect,  constitute  and  appoint  him  the  defen- 
dant, to  be  one  of  tlie  trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  of  the  United  States  of  America,  by  force  of  which  election  and  appoint- 
ment so  made  as  aforesaid,  lie  saith  that  he  became  lawfully  authorized  and  entitled 
to  take  upon  himself,  and  with  his  associates  in  that  behalf  lawfully  constituted,  to 
exercise  and  enjoy  the  office  of  one  of  the  trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  and  the  franchises,  liberties 
and  privileges  thereunto  belonging  and  appertaining  within  the  city  and  county  of 
Philadelphia.  And  he  further  in  fact  sailii,  that  he  did  thereupon  accept  and  take 
upon  himself  the  said  office,  and  th.at  he  hath  ever  since,  and  as  well  after  as  before 
the  twenty-fourth  da}'  of  May,  A.  D.  1838,  exercised  and  continued  to  exercise  the 
same  in  the  city  and  county  of  Philadelphia,  by  virtue  of  the  authority  so  to  him 
granted  by  the  said  election  and  appointment,  and  by  virtue  of  the  said  act  of  as- 
sembly of  this  commonwealth,  all  which  he  is  ready  to  verify.  Without  this,  that 
on  the  twenty -fourth  day  of  May,  A.  D.  1838,  or  at  any  other  time,  before  or  since 
the  said  relators  or  any  of  them  were  in  due  and  regular  form  of  law  elected  trus- 
tees of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America,  as  they  have  suggested  to  this  honourable  Court ;  and  without  this,  that 
by  reason  of  any  matter  or  thing  whatsoever,  the  said  office  of  him,  this  defendant, 
and  his  right  to  have,  exercise  and  enjoy  the  same,  together  with  the  franchises, 
liberties  and  privileges  thereunto  belonging  and  appertaining,  have  been  in  any 
wise  vacated,  determined  or  abridged.  AVherefore  this  defendant  prays  judgment, 
and  that  the  office,  francliises,  liberties  and  privileges  by  him  herein  claimed  as 
aforesaid,  may  be  adjudged  and  allowed  to  him,  and  tiiat  he  may  be  dismissed  and 
discharged  by  the  Court  here,  of  and  from  the  premises  above  cliarged  upon 
him,  &c.  Thomas  Brabford. 

Filed  July  31,  1838. 


Replication  to  the  Plea  of  Ashbel  Green. 

Com.  ex,  rel.  1  o         _    /-.       .. 

Todd,  and  al.  i  Supreme  Court, 


; 


Green  and  al.  J  July,  1838.    No.  60, 

And  the  said  relators,  who  prosecute  for  the  Commonwealth  in  this  behalf,  hav- 
ing heard  the  plea  of  the  said  Ashbel  Green,  in  manner  and  form  aforesaid,  above 
pleaded  in  bar  to  the  said  suggestion  for  the  said  Commonwealth,  say,  that  by  any 


17 

thing  in  that  plea  alleged,  tlie  said  Commonwealth  ought  not  to  be  barred  fi-om  having 
the  said  sugg-estion  against  the  said  Ashbel,  because  protesting  that  the  said  plea  and. 
the  matters  therein  contained,  are  not  sufHcient  in  law  to  bar  the  said  Common- 
wealth from  having  the  aforesaid  suggestion  against  the  said  Ashbel,  to  which  said 
plea  in  manner  and  form  above  pleaded,  tiie  said  relators  are  under  no  necessity, 
nor  any  ways  obliged  by  tlie  law  of  the  land  to  answer;  for  replication,  neverthe- 
less, the  said  relators  say,  that  by  the  said  act  of  Assembly  of  this  Commonwealth, 
in  the  said  plea  above  mentioned  and  referred  to,  it  was  among  other  things  enact- 
ed, that  the  said  Ashbel  Green  and  seventeen  other  persons  in  the  said  act  named, 
and  their  successors  duly  elected  and  appointed  in  manner  as  is  thereinafter 
directed,  should  be,  and  they  were  thereby  made,  declared  and  constituted  a  cor- 
poration and  body  politic  and  corporate  in  law  and  in  fact,  to  iiave  continuance  for 
ever,  by  the  name,  style  and  title  of  Trustees  of  the  General  Assembly  of  the  Pres- 
byterian Church  in  the  United  States  of  America,  and  that  the  said  corporation 
and  their  successors,  by  the  name,  style  and  title  aforesaid,  should  be  able  and  ca- 
pable in  law,  all  and  every  matter  and  thing  to  do  in  as  full  and  effectual  a  man- 
ner as  any  other  person,  bodies  politic  or  corporate,  within  this  commonwealth 
might  or  could  do,  and  that  the  said  corporation  should  not  at  any  time  consist  of 
more  than  eighteen  persons,  whereof  the  said  General  Assembly,  might  at  their 
discretion,  as  often  as  they  should  iiold  their  sessions  in  the  state  of  Pennsylvania, 
change  one-third  in  such  manner  as  to  the  said  General  Assembly  should  seem 
proper,  which  said  act  of  assembly,  the  persons  named  therein,  afterwards,  to  wit, 
on  the  said  twenty-eightli  day  of  March,  in  the  year  one  thousand  seven  hundred 
and  ninety-nine  accepted,  to  wit,  at  the  city  and  county  aforesaid.  And  the  said 
relators  in  fact  say,  that  on  the  seventeenth  day  of  May,  in  the  year  one  thousand 
eight  hundred  and  tiiirty-eight,  the  said  General  Assembly  commenced  and  held  a 
session  at  the  city  of  Philadelphia,  in  the  state  of  Pennsylvania,  to  wit,  at  the  city 
and  county  aforesaid,  and  thenceforth  continued  to  hold  the  same  there  for  a  long 
space  of  time,  and  that  during  the  last  mentioned  session  thereof,  to  wit,  on  the 
twenty-fourth  day  of  May,  in  the  j'ear  last  aforesaid,  the  said  General  Assembly  in 
pursuance  of  the  provisions  of  the  said  act  of  assembly,  and  in  the  due  and  lawful  ex- 
ercise of  the  power  and  authority  thereby  conferred  upon  them,  to  change  the  said 
trustees  as  therein  mentioned,  chose  the  said  James  Todd  to  be  one  of  the  trustees 
of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica, in  the  place  of  the  said  Aslibel  Green,  and  lie  the  said  James  Todd  was  thereby 
then  and  there  in  due  manner  elected  and  appointed  one  of  the  said  trustees  as 
aforesaid,  in  the  place  of  the  said  Ashbel  Green,  and  the  said  James  Todd  then  and 
there  accepted  ^ik1  took  upon  himself  the  said  office,  and  the  said  General  Assem- 
bly thereby  then  and  there  amoved,  disfrancliised  and  discharged  the  said  Ashbel 
Green,  of  and  from  the  office  of  one  of  the  trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  and  of  and  from  the  fran- 
chises, liberties  and  privileges  thereunto  belonging*  and  appertaining;  all  and  singular 
which  said  matters  and  things  the  said  relators  are  ready  to  verify  and  prove  as  the 
court  shall  award:  wherefore  they  pray  judgment,  and  that  the  said  Ashbel  may  be 
convicted  of  the  premises  above  charged  upon  him,  and  that  he  may  be  ousted  and 
altogether  excluded  from  the  said  office  of  one  of  the  trustees  of  the  General  As- 
sembly of  the  Presbyterian  Church  in  the  United  States  of  America,  so  by  him 
claimed  in  manner  aforesaid,  &c. 

J.  Ra^'dall, 
Mehedith, 

For  Relators. 
Filed  October  10th,  183S. 


'  Comm.  ex  rel.  "^  „  r^      ,. 

Todd  and  al.  J^  Supreme  Court, 

Green  and  al.  J  J"  ^^SS.    No.  60. 

Enter  rule  on  defendants  Green,  Cuyler,  Allen  and  Bradford,  to  rejoin  in  four 
weeks,  or  judgment,  sec.  reg. 

W.  M.  Meredith, 

For  Relators. 
10th  Oct.  1838. 
To  P.  S,  C. 

2* 


IS 


Replication  to  the  Plea  of  Thomas  Bradford. 

Comm.  ex  rel,  1  c-  ^       ^ 

Todd  and  al.  j^  Supreme  Court, 

„         ""■  ,'  I  J.  1838.    No.  69. 

Green  and  al.  J 

And  the  said  relators  who  prosecute  for  the  Commonwealth  in  tills  behalf  having' 
heard  the  plea  of  the  said  Thomas  Bradford,  in  manner  and  form  aforesaid  above 
pleaded  in  bar  to  the  said  suggestion  for  the  said  Commonwealth  say,  that  by  any 
thing  in  that  plea  alleged,  the  said  Commonwealth  ought  not  to  be  barred  from  hav- 
ing the  said  suggestion  against  the  said  Thomas  Bradford,  because  protesting  that  the 
said  plea  and  tlie  matters  therein  contained  are  not  sufficient  in  law  to  bar  the  said 
Commonwealth  from  having  the  afoi-esaid  suggestion  against  the  said  Thomas 
Bradford,  to  which  said  plea  in  manner  and  form  above  pleaded,  the  said  relators 
are  under  no  necessity,  nor  any  ways  obliged  by  the  law  of  the  land  to  answer  ;  for 
replication,  nevertheless,  the  said  relators  say,  that  by  the  said  act  of  assembly  of 
this  Commonwealth,  in  the  said  plea  above  mentioned  and  referred  to,  it  was  among 
other  things  enacted  that  Ashbel  Green  and  seventeen  otlier  ])ersons  named  in  the 
said  act,  and  their  successors  duly  elected  and  appointed  in  manner  as  is  thereinaf^ 
ter  directed,  should  be  and  they  are  thereby  made,  declared  and  constituted  a 
corporation  and  body  politic  and  corporate  in  law  and  in  fact,  to  have  continuance 
for  ever,  by  the  name,  style  and  title  of  Trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  and  that  the  said  corpora- 
tion and  their  successors,  by  the  name,  style  and  title  aforesaid,  sliould  be  able  and 
capable  in  law,  all  and  every  matter  and  thing  to  do  in  as  full  and  effectual  a  man- 
ner as  any  other  person,  bodies  politic  or  corporate  within  this  commonwealth, 
might  or  could  do,  and  that  the  said  corporation  .should  not  at  any  time  consist  of 
more  than  eighteen  persons,  whereof  the  said  General  Assembly  might  at  their 
discretion,  as  often  as  they  should  hold  their  sessions  in  the  state  of  Pennsylvania, 
change  one-third  in  such  manner  as  to  the  said  General  Assembly  should  seem 
pi'oper,  which  said  act  of  assembly,  the  persons  therein  named,  afterwards,  to  wit, 
on  the  said  twenty-eighth  day  of  March,  in  the  year  one  thousand  seven  hundred 
and  ninety-nine,  accepted,  to  wit,  at  the  city  and  county  aforesaid.  And  the  said 
relators  in  fact  say,  that  afterwards,  to  wit,  on  the  seventeenth  day  of  May,  in  tlie 
year  one  thousand  eight  hundred  and  thirty -eight,  the  said  General  Assembly  com- 
menced and  held  a  session  at  the  city  of  Philadelphia,  in  the  state  of  Pennsylvania, 
to  wit,  at  the  city  and  county  aforesaid,  and  thenceforth  continued  to  hold  the  same 
there  for  a  long  space  of  time,  and  that  during  the  said  last  mentioned  session 
thereof,  to  wit,  on  the  twenty-fourtii  day  of  May,  in  the  year  last  aforesaid,  the  said 
General  Assembly  in  pursuance  of  the  provisions  of  the  said  act  of  assembly,  and  in 
the  due  and  lawi'ul  exeixise  of  tlie  power  and  authority  thereby  conferred  upon 
them  to  change  the  said  trustees  as  therein  mentioned,  elected  and  appointed  the 
said  George  W.  M'Clelland  to  be  one  of  the  trustees  of  the  General  Assembly  of 
the  Presbyterian  Church  in  the  United  States  of  America,  in  the  place  of  the  said 
Thomas  Bradford,  and  he  the  said  George  W.  M'Clelland  was  thereby  then  and 
there  in  due  manner  elected  and  appointed  one  of  the  said  trustees  as  aforesaid,  in 
the  place  of  the  said  Thomas  Bradford,  and  the  said  George  W.  M'Clelland,  then 
and  there  accepted  and  took  upon  himself  the  said  office,  and  the  said  General 
Assembly  thereby  then  and  there  amoved,  disfranchised  and  discharged  the  said 
Thomas  Bradford  of  and  from  the  office  of  one  of  the  trustees  of  the  General  As- 
sembly of  the  Presbyterian  Church  in  the  United  States  of  America,  and  of  and 
from  the  franchises,  liberties  and  privileges  thereunto  belonging  and  appertaining; 
all  and  singular  which  said  matters  and  things  the  said  relators  are  ready  to  verity 
and  prove  as  the  court  shall  award.  Wherefore  they  pray  judgment,  and  that  the 
said  Thomas  Bradford  may  be  convicted  of  the  premises  above  ciiarged  upon  him, 
and  that  he  may  be  ousted  and  altogether  excluded  from  the  said  office  of  one  of 
the  trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,  so  by  him  claimed  in  manner  aforesaid,  &c. 

J.  Randall, 
Meredith, 

For  the  Relators. 
Filed  October  10,  1838. 


19 

Green  et  al. 
ats. 
»  Commonwealth 

ex  relatione 
Todd,  et  al. 

And  the  said  Aslibel  Green,  protestuig-  that  the  said  plea  of^^V'^IA'PdJltijrs,  &c., 
in  manner  and  form  aforesaid,  made  and  pleaded  in  reply,  and  the  matters  therein 
contained,  are  not  sufficient  in  law,  &c.,  and  that  he  need  not,  nor  is  he  obliged  by 
the  law  of  the  land  to  answer  thereto,  yet  the  said  Ashbel  Green,  for  a  rejoinder  to 
the  replication  of  the  said  relators,  saith,  that  the  General  Assembly  of  the  Presby- 
terian church,  in  the  United  States  of  America,  did  not  choose  the  said  James  Totld 
to  be  one  of  the  trustees  of  the  General  Assembly  of  the  Presbyterian  Church,  in 
the  United  States  of  America,  in  the  place  of  the  said  Ashbel  Green,  nor  was  the 
said  James  Todd  in  due  manner  elected  and  appointed  one  of  the  trustees  as  afore- 
said, in  the  place  of  the  said  Ashbel  Green,  nor  did  the  said  General  Assembly 
amove,  disfranchise  and  discharge  the  said  Ashbel  Green,  of  and  from  the  office  of 
one  of  the  trustees  of  the  Genei-al  Assembly  of  tlie  Presbyterian  Churcii,  in  the 
United  States  of  America,  nor  of  and  from  the  franchises,  liberties  and  privileges 
thereunto  belonging  and  appertaining,  in  manner  and  form  as  the  said  relators  have 
in  their  said  replication  alleged,  and  of  this,  he  the  said  Ashbel  Green  puts  himself 
upon  the  country,  wherefore  this  defendant  prays  judgment,  &.c. 

F.  W.  Hub  BELL. 
Filed  November  7,  1838. 


Green,  et.  al.  ^ 

ats.  I 

Commonwealth,  }- 

ex  relatione  | 

Todd,  et  al.  J 

And  the  said  Thomas  Bradford  protesting  that  the  said  plea  of  the  said  relators, 
&c.,  in  manner  and  form  aforesaid,  made  and  pleaded  in  reply,  and  the  matters 
therein  contained  are  not  sufficient  in  law.  Sec,  and  that  he  need  not,  nor  is  he 
obliged  by  the  law  of  the  land  to  answer  thereto,  yet  the  said  Thomas  Bradford, 
for  a  rejoinder  to  the  replication  of  the  said  relators  saith,  that  the  General  Assem- 
bly of  the  Presbyterian  Church,  in  the  United  States  of  America,  did  not  elect  and 
appoint  the  said  Georg-e  W.  M'Clelland  to  be  one  of  the  trustees  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America,  in  the  place 
of  the  said  Thomas  Bradford,  nor  was  the  said  George  W.  M'Clellancl  in  due  man- 
ner elected  and  appointed  one  of  the  said  trustees  as  aforesaid,  in  the  place  of  the 
said  Thomas  Bradfoi'd,  nor  did  the  said  General  Assembly  amove,  disfranchise  and 
discharge  the  said  Tliomas  Bradford  of  and  from  the  office  of  one  of  the  trustees  of 
the  General  Assembly  of  the  Presbyterian  Church,  in  the  United  States  of  America, 
nor  of  and  from  the  franchises,  liberties  and  privileges  thereunto  belonging  and 
appertaining  in  manner  and  form  as  the  said  relators  have  in  their  said  replication 
alleged,  and  of  tiiis,  he  the  said  Thomas  Bradford  puts  himself  on  the  country, 
&c.,  wherefore  the  said  defendant,  Thomas  Bradford,  prays  judgment,  ike. 

F.   \V.   HUBBELL. 

Filed  November  7,  1838. 


Comm.  ex.  rel.  "\  S.  C.  J.  1838. 

Todd  &  al.  J 

>  No.  60. 

Ashbel  Green  &  al.  J  Quo  warranto. 

Enter  the  similiter  on  the  several  rejoinders  of  Ashbel  Green,  Thomas  Bradford, 
Solomon  Allen  and  Cornelius  C.  Cuyler,  and  set  the  issues  down  for  trial. 

J.  Randall, 
W.  M.  Meredxth, 
To  P.  S.  C.  for  Relators. 

7th  November,  1838. 
Similiter  and  issues,  filed  Nov.  7th,  1838. 


20 

This  cause  was  tried  at  the  December  Term,  Seco\d  Period, 
before  Hon.  Molton  C.  Rogers,  at  Nisi  Prius,  and  a  special  Jury. 
It  commenced  on  Monday,  March  4,  A.  D.  1839,  and  occupied 
twenty  days  being;  committed  to  the  Jury,  and  their  verdict  ren- 
dered, on  Tuesday  the  26th  of  the  same  month. 

The  Jurors  empanelled  were: 

Charles  Barrington,  William  S.  Greiner, 

Charles  Wagner,  Miller  N.  Everly, 

James  Simpson,  R.  C.  Dickinson, 

Lewis  Quandale,  John  Burks, 

George  Mecke,  S.  Baker, 

Isaac  Jeanes,  Edward  R.  Myers. 

Tuesday  morning,  March  5th. 

The  jury  having  been  charged  to  inquire  of  the  matters  of  fact 
contested, 

Mr.  Randall,  for  the  relators,  opened  the  case  as  follows: 

May  it  please  your  Honour — Gentlemen  of  the  Jury:  This  action 
is  brought  in  the  name  of  the  Commonwealth  of  Pennsylvania,  but 
it  is  not  to  be  considered  in  the  light  of  a  criminal  proceeding.  It 
does  not  involve  any  question  as  to  the  moral  character  of  the  de- 
fendants. The  suit,  though  nominally  a  prosecution  by  the  Com- 
monwealth, is  only  a  method  which  the  law  has  prescribed,  to  de- 
termine the  rights  of  individuals.  The  object  of  the  writ  Quo  War- 
ranto in  this  case  is  to  try  whether  certain  persons,  viz.  Dr.  Ashbel 
Green,  Thomas  Bradford,  Esq.,  Solomon  Allen,  Esq.,  and  Dr.  Cor- 
nelius C.  Cuyler  were,  on  the  24th  day  of  May,  A.  D.  1838,  trustees, 
a  body  incorporated  by  the  Legislature  of  Pennsylvania,  as  "  The 
Trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in 
the  United  States  of  America."  In  order  to  understand  this  case, 
it  will  be  necessary  to  recur  to  a  portion  of  the  history  of  the  Pres- 
byterian Church. 

The  first  presbytery  formed  in  the  United  States  was  the  Pres- 
bytery of  Philadelphia.  In  the  year  1758,  there  existed  two  sy- 
nods, the  Synod  of  New  York  and  the  Synod  of  Philadelphia;  in 
that  year  they  united,  forming  an  ecclesiastical  body,  called  the 
Synod  of  New  York  and  Philadelphia.  This  organization  continued 
until  the  year  1788,  when,  in  the  place  of  this  general  synod,  was 
instituted  what  was  termed  the  General  Assembly  of  the  Presbyte- 
rian Church  in  the  United  States  of  America,  the  first  meeting  of 
which  was  held  in  the  city  of  Philadelphia,  on  the  third  Thursday 
of  May,  1789.  On  the  28th  day  of  March,  1799,  the  Legislature 
of  Pennsylvania  passed  an  act  incorporating  certain  persons  therein 
mentioned,  under  the  name  of  "The  Trustees  of  the  General  As- 
sembly of  the  Presbyterian  Church  in  the  United  States  of  America." 
The  sixth  section  of  this  act  is  as  follows: 

"That  the  said  corporation  shall  not,  at  any  time,  consist  of  more 
than  eighteen  members;  whereof,  the  said  General  Assembly  may, 
at  their  discretion,  as  often  as  they  shall  hold  their  sessions  in  the 
State  of  Peiiasylvania,  change  one-third,  in  such  manner  as  to  the 


21 

said  General  Assembly  shall  seem  proper:  And  the  corporation 
aforesaid  shall  have  power  and  authority,  to  manage  and  dispose 
of  all  moneys,  goods,  chattels,  lands,  tenements,  and  hereditaments, 
and  other  estate  whatsoever  committed  to  their  care  and  trust,  by 
the  said  General  Assembly;  but  in  cases  where  special  instructions 
for  the  management  and  disposal  thereof,  shall  be  given  by  the  said 
General  Assembly  in  writing,  under  the  hand  of  their  clerk,  it  shall 
be  the  duty  of  the  said  corporation,  to  act  according  to  such  in- 
structions: Provided,  said  instructions  shall  not  be  repugnant  to  the 
constitution  and  laws  of  the  United  States,  or  to  the  constitution 
and  laws  of  this  Commonwealth,  or  to  the  provisions  and  restric- 
tions in  this  act  contained." 

The  lowest  court  of  judicatory  known  to  the  Presbyterian 
Church  is  the  session.  This  primary  ecclesiastical  body  consists  of 
the  pastor,  or  pastors,  and  the  ruling  elders  of  a  particular  congre- 
gation, such  elders  being  chosen  from  among  the  male  members  of 
the  church,  and  holding  their  office  for  life.  The  next  court  is  the 
presbytery,  which  consists  of  all  the  ministers,  and  one  ruling  elder 
from  each  congregation,  within  a  certain  district;  at  least  three 
ministers,  however,  and  as  many  elders  as  are  present  being  neces- 
sary to  constitute  the  body.  The  next  superior  judicatory  is  the 
synod,  which  includes  a  number  of  presbyteries,  at  least  three,  and 
is  composed  of  all  the  ministers,  and  of  representative  elders,  one 
from  each  church  within  its  bounds.  The  highest  tribunal  is  the 
General  Assembly,  which  is  entirely  a  representative  body,  con- 
sisting of  ministers  and  elders  delegated  from  the  various  presby- 
teries. The  representation  of  each  being  in  proportion  to  the  num- 
ber of  its  constituent  number  of  ministers  within  its  bounds,  each 
presbytery  being  entitled  to  one  minister  and  one  elder,  and  to  two 
additionaf  commissioners  when  the  number  of  ministers  exceeds 
twenty-four,  and  so  in  proportion  for  each  successive  twenty-four 
ministers,  to  two  additional  commissioners  of  like  character.  The 
synods,  as  such,  have  no  representation  in  the  General  Assembly; 
they  are  courts  superior  to  the  presbyteries  in  certain  points,  as  in 
the  right  of  trying  appeals  from  the  latter,  yet  they  are  passed  by 
in  the  organization  of  the  Assembly,  which  is  composed  of  the  im- 
mediate representatives  of  the  presbyteries. 

In  the  year  1803,  the  Synod  of  Albany  was  created,  by  a  union 
of  the  Presbyteries  of  Oneida,  Albany  and  Columbia:  and  in  1812 
this  synod  was  divided  into  the  two  Synods  of  Albany  and  Geneva, 
the  latter  comprising  within  its  bounds  the  Presbyteries  of  Onon- 
daga, Cayuga  and  Geneva.  The  Synod  of  Geneva  thus  formed, 
was  itself  divided  in  the  year  1821,  the  Presbyteries  of  Niagara, 
Genessee,  Rochester  and  Ontario,  then  component  parts  of  that  body, 
being  erected  into  a  separate  synod  called  the  Synod  of  Genessee. 
In  the  year  1825  the  Synod  of  Pittsburgh  was  divided  and  the 
Presbyteries  of  Grand  River,  Portage  and  Huron  were  constituted 
the  Synod  of  the  Western  Reserve.  In  1829,  the  Synod  of  Albany 
was  a  second  time  divided,  and  the  Presbyteries  of  Ogdensburg, 
Watertown,  Oswego,  Oneida  and  Otsego,  separated  therefrom, 
were  constituted  a  new  synod,  called  the  Synod  of  Utica. 


22 

We  have  thus  traced  the  formation  of  the  Synods  of  Utica,  Ge- 
neva, Genessee  and  Western  Reserve — the  four  synods  to  which,  in 
the  progress  of  this  cause,  your  attention  will  be  particularly  di- 
rected. The  presbyteries  constituting  these  synods,  continued  to 
act  under  the  General  Assembly  for  many  years;  they  were  always 
recognized  as  parts  of  the  Presbyterian  Church,  they  were  repre- 
sented in  the  General  Assembly,  the  officers  of  that  body  being 
sometimes  chosen  from  their  members,  and  funds  being  collected 
among  them,  were  paid  into  the  common  treasury. 

Thus  matters  continued  until  differences  of  opinion  crept  into  the 
church,  which,  however,  it  was  at  first  hoped  would  not  destroy  its 
unity  or  its  peace.  But  they  increased — two  conflicting  parties 
divided  the  General  Assembly,  and  the  terms  Old  and  New  School 
began  to  be  applied  respectively  to  them;  which  terms  we  shall 
employ  for  the  purpose  of  description,  without,  however,  intending 
to  admit  that  those  whom  we  represent  have  in  any  respect  departed 
from  the  original  Presbyterian  faith. 

For  some  years  these  two  parties  continued  nearly  equal.  In 
1831,  2,  3  and  4,  our  Old  School  brethren,  for  as  brethren  we  still 
regard  them,  were  a  minority  in  the  General  Assembly.  In  1835, 
they  had  a  majority;  in  1836,  the  New  School  were  again  a  ma- 
jority. This  led  to  the  adoption  of  a  project  by  the  Old  School 
party,  to  separate  from  their  brethren  with  whom  they  could  not 
accord;  and  in  May,  1837,  a  meeting  of  that  party  was  held  in 
Philadelphia,  for  deliberation  on  this  project,  and  all  the  preliminary 
arrangements  were  made  by  the  Old  School  party  for  a  voluntary 
separation  or  secession.  But  in  the  Assembly  of  that  year,  they 
unexpectedly  found  themselves  a  majority,  and  this  state  of  things 
changed  their  whole  plan  of  action.  At  the  meeting  of  the  Assem- 
bly, a  proposal  of  separation  was  made  by  the  Old  School,  on  their 
own  terms,  securing  to  them  the  name  and  succession;  and  to  force 
a  compliance  with  this  proposal,  the  purpose  of  cutting  ofi'from  the 
church  a  sufficient  number  of  their  opponents,  to  place  themselves 
in  a  decided  majority,  was  held  out  as  a  punishment  to  be  inflicted 
on  the  New  School,  if  they  would  not  consent  to  the  proposed 
separation.  The  New  School  party  were  willing  to  entertain  the 
proposal,  and  to  enter  into  a  negotiation  on  the  subject;  and  the 
terms  which  they  offered  are  in  our  opinion  most  equitable,  but  they 
were  refused,  and  the  plan  of  excision  resolved  upon. 

The  Old  School  were  determined  to  secure  a  future  majority  in 
the  General  Assembly.  Their  partisans  were  told  plainly  by  the 
gentleman  who  was  their  master  spirit  in  all  these  movements,  that 
unless  they  improved  the  opportunity  then  offered,  it  might  never 
again  occur.  Accordingly,  they  proceeded  to  the  work  of  des- 
truction, and  cut  off  from  the  church  the  four  synods  above  named 
— Utica,  Geneva,  Genessee  and  Western  Reserve;  by  this  act,  cast- 
ing out  from  their  communion  five  hundred  and  nine  ministers, 
five  hundred  and  ninety-nine  churches,  and  fifty-seven  thousand 
seven  hundred  and  twenty-four  communicants.  In  several  cases, 
reverend  fathers  of  the  church,  who  had  reached  the  patriarchal 
limit  of  three-score  and  ten,  were  excluded;  and  this  by  a  body,  of 


23 

which  the  chief  actors  had  been  but  a  few  years  in  the  church. 
Dark  as  are  the  pages  of  ecclesiastical  history,  itfurnishes  no  parallel 
to  these  proceedings. 

Perhaps  there  is  no  part  of  the  Presbyterian  form  of  church  go- 
vernment more  wisely  and  carefully  guarded,  than  that  which  pro- 
vides for  cutting  oft"  or  expelling  a  member.  For  every  such  case 
a  plan  of  proceeding  is  circumstantially  prescribed.  There  must 
always  be  an  accusation  of  crime,  witnesses  and  proof;  and  above 
all,  a  regular  trial,  giving  a  full  opportunity  to  the  party  accused  to 
face  his  accuser,  if  there  be  one,  and  to  speak  in  his  own  defence. 
To  exhibit  fully  to  you,  gentlemen,  the  care  with  which  this  right 
is  guarded,  I  will  advert  to  the  Form  of  Government  and  Discip- 
line adopted  by  the  Presbyterian  Church,  for  the  rules  in  relation 
to  this  matter.  Chapter  fourth,  of  the  Book  of  Discipline,  is  devoted 
to  the  subject  of  Actual  Process.   Some  of  its  provisions  I  will  read. 

[Mr.  Randall  then  read  different  parts  of  the  chapter  referred  to, 
as  also  of  the  succeeding  one,  which  prescribes  the  form  of  "Pro- 
cess against  a  Bishop  or  Minister,"  to  show  how  precise  and  strict 
were  the  rules  on  this  point.  They  will  be  found  in  full  in  a 
subsequent  part  of  this  report.  They  provide  for  two  modes 
in  which  an  offence  may  be  brought  before  a  judicatory — by  an  in- 
dividual appearing  as  accuser,  or  by  common  fame;  enjoin  great 
caution  in  receiving  accusations  from  malicious,  interested  and 
otherwise  improper  persons;  require  a  copy  of  the  charge,  with  the 
names  of  the  witnesses  to  be  given  to  the  accused,  and  notice  to 
all  parties  concerned;  that  the  trial  shall  be  put  oft'  until  the  meet- 
ing of  the  judicatory  next  succeeding  that  at  which  the  accusation 
is  preferred;  that  the  charge  shall  be  made  with  all  possible  pre- 
cision as  to  time,  place  and  circumstances;  and  that  the  trial  shall 
be  fair  and  impartial,  the  witnesses  being  examined  in  the  presence 
of  the  accused,  who  are  permitted  to  question  them;  and  prescribe 
the  manner  and  degree  of  punishment  to  be  inflicted,  whether  ad- 
monition, rebuke,  or  exclusion.  Process  against  a  Gospel  minister 
is  required  always  to  be  entered  before  the  Presbytery  of  which  he 
is  a  member.] 

These  are  the  provisions  of  the  Book  of  Discipline;  but  widely 
different  were  the  proceedings  in  the  case  before  us !  There  was 
no  accuser,  no  accusation.  Notice  was  not  given  to  the  parties 
thus  disciplined.  In  fact,  the  first  information  carried  to  the  o-reat 
mass  of  Presbyterians  who  inhabit  the  proscribed  districts  was,  that 
they  had  been  cutoff",  excluded  from  the  communion  of  their  church. 
Even  the  names  of  the  individuals  who  moved  and  seconded  one 
of  the  excinding  resolutions  are  not  recorded  in  the  published 
minutes  of  the  Assembly. 

The  ground  for  these  proceedings  of  excision,  upon  which  the 
Old  School  party  rely,  is  the  unconstitutionality  of  a  certain  Plan 
of  Union,  entered  into  in  the  year  1801,  between  the  General  As- 
sembly of  the  Presbyterian  Church,  and  the  General  Association 
of  the  State  of  Connecticut ;  a  plan,  by  which,  as  they  contend, 
Congregationalists  have  been  received  into  the  Presbyterian  com- 
munion, and  under  the  aid  of  which,  they  allege  the  four  excinded 


24 

synods  to  have  been  formed.  But  we  shall  show  you  that  this 
was  only  a  plan  of  fellowship,  of  the  same  character  as  that 
adopted  with  the  General  Association  of  New  Hampshire,  Ver- 
mont, Massachusetts,  the  Associate  Reformed  Church  and  Dutch 
Reformed  Church,  both  before  and  after  the  Plan  of  Union  in  1801, 
and  that  not  a  single  elder,  minister,  church,  or  presbytery  has  been, 
or  ever  could  be  admitted  under  its  operation. 

By  its  terms  it  can  have  no  operation  on  a  minister  until  he  shall 
have  been  previously  ordained  as  a  Presbyterian  minister.  The 
Plan  of  Union  authorized  Presbyterian  ministers  to  preach  to  a 
Congregational  church,  and  in  case  of  dispute  between  the  pastor 
and  his  people,  authorized  a  voluntary  tribunal  to  adjust  it  by  arbi- 
trament. But  it  could  in  no  manner  afiect  or  operate  upon  the 
admission  of  a  minister  or  church  into  the  presbytery,  synod  or 
General  Assembly;  the  two  subjects  had  no  connexion.  Under  the 
plan  a  small  proportion  of  ministers  were  settled  over  Congrega- 
tional churches;  that  number  has  been,  and  is,  yearly  diminishing, 
and  in  the  three  excinded  synods  of  New  York  is  now  almost  ex- 
tinct. Thus,  gentlemen,  you  will  perceive,  that  the  General  As- 
sembly in  1801,  authorize  Presbyterian  ministers  to  preach  to 
Congregational  churches,  and  in  1837  expel  them  for  obeying  their 
own  resolution,  and  to  increase  the  unequalled  obliquity  of  the 
act,  they  excind  every  minister,  communicant  or  church,  that  re- 
spectively may  live  or  be  located  within  the  bounds  of  the  synod, 
where  a  Presbyterian  minister  has,  in  obedience  to  their  own  au- 
thority, preached  to  a  Congregational  church. 

We  shall  further  exhibit,  gentlemen,  the  unjust  effect  of  the  ex- 
cinding  acts.  The  synods  have  local  bounds.  Accordingly,  there- 
fore, by  these  resolutions,  it  becomes  a  crime  for  a  Presbyterian  to 
live  within  the  proscribed  districts.  The  mere  circumstance  of 
residence  makes  an  individual,  or  ecclesiastical  body,  heretical  or 
otherwise.  While  a  minister,  who  had  entered  into  the  communion 
of  the  church,  and  received  his  ordination  within  the  bounds  of  one 
of  those  synods,  but  who  has  removed  to  some  other  district,  before 
the  excision,  remains  in  good  standing,  another,  ordained  by  a 
body  still  acknowledged  as  strictly  Presbyterian,  has  by  entering 
the  infected  region,  lost  the  right  of  fellowship,  and  is  excinded. 

The  practical  operation  of  these  excinding  resolutions  is  the 
local  desecration  of  a  whole  region  of  country,  about  two  thirds 
of  the  state  of  New  York,  and  a  portion  of  the  state  of  Ohio.  It 
was  purely  local,  or  geographical,  and  had  the  Rev.  gentleman 
now  before  us,  {Df.  Green,)  removed  before  1837  to  any  part  of 
this  expatriated  country,  he  would  have  been  cut  off  among  the 
rest.  The  General  Assembly  of  1837  did  not,  with  any  consistency, 
carry  out  its  plan  of  operation,  into  every  case  to  which  it  was 
legitimately  applicable.  At  one  blow  these  four  synods  were  ex- 
cluded, while  other  bodies,  equally  obnoxious  to  the  charges  brought 
against  them,  were  not  touched,  and  still  remain  in  full  commu- 
nion. The  Synods  of  South  Carolina  and  Georgia  should  have 
been  excinded,  if  the  Old  School  party  had  wished  to  be  consistent 
and  impartial.     The  Synods  of  Pittsburgh  and  New  Jersey  equally 


25 

deserved  the  same  fate.  And  the  parent  Synod  of  Albany  was 
suffered  to  escape,  although  obnoxious  to  the  very  charges  under 
which  its  offspring  was  cut  off.  The  case  of  the  Synod  of  the 
Western  Reserve  is  still  more  extraordinary.  It  was  erected  out 
of  the  Synod  of  Pittsburgh,  and  formerly  included  what  is  now 
the  Synod  of  Michigan.  In  the  course  of  time  the  Synod  of 
Michigan  was  created,  and  while  the  Synod  of  the  Western  Re- 
serve was  cut  off,  those  of  Pittsburgh  and  Michigan  were  left  un- 
touched. The  Assembly  first  abrogated  the  Plan  of  Union,  and 
then  declared  that  this  plan  having  been  unconstitutional  and  void 
from  the  beginning,  no  rights  had  ever  been  acquired  by  it ;  and 
therefore  that  the  four  synods,  which  were  alleged  to  have  been 
formed  under  its  operation,  had  never  been  parts  of  the  Presbyte- 
rian church.  Yet  the  same  consequences  were  not  visited  on  other 
synods,  standing  in  precisely  the  same  situation.  If  any  circum- 
stance were  wanting  to  render  this  proceeding  more  unjust,  it  was, 
that  the  General  Assembly  had,  in  1835,  repealed  prospectively 
the  Plan  of  Union  of  1801,  reserving  intermediate  rights  acquired 
under  it. 

Thus  far  the  work  of  excision  was  complete ;  but  it  was  neces- 
sary to  extend  the  operation  of  the  act  into  the  Assembly  of  1838, 
in  order  to  make  it  of  any  avail.  It  is  the  duty  of  the  clerks  of 
that  body,  who  continue  in  office  from  year  to  year,  during  the 
pleasure  of  the  Assembly — as  a  Committee  of  Commissions,  to  ex- 
amine the  commissions  of  the  members,  and  report  at  the  opening 
of  the  session,  those  duly  elected.  They  are,  in  this  matter,  but 
ministerial,  or  executive  officers,  bound  to  act  according  to  the 
constitution  and  laws  of  the  church.  It  was  feared  that  the  clerks 
of  1837,  in  assisting  in  the  organization  of  the  next  General  As- 
sembly, might  refuse  to  acknowledge  the  legality  of  the  resolutions 
of  that  year,  excluding  a  part  of  the  constituency  of  the  Assem- 
bly, and  might  receive  the  commissions  of  delegates  coming  from 
within  the  bounds  of  the  excinded  synods.  A  pledge  was  therefore 
required  from  these  clerks,  that  they  would  carry  out  the  illegal 
acts  of  1S37,  in  the  new  organization  of  1838.  But  no  minute  of 
this  proceeding — of  this  pledge  demanded  and  given,  is  to  be  found 
upon  the  published  minutes  of  the  Assembly  of  1837. 

At  the  time  appointed  in  1838,  commissioners  from  the  various 
presbyteries  in  the  United  States,  including  those  coming  from  the 
four  excinded  synods,  met  as  usual,  in  this  city.  The  latter,  with 
the  rest,  presented  their  commissions  to  the  Stated  and  Permanent 
Clerks,  and  demanded  that  their  names  should  be  enrolled.  But 
these  officers  had  already  been  pledged  to  a  course  forbidding  the 
reception  of  these  commissions  ;  and  they  accordingly  refused. 

Next,  all  the  commissioners  met  together  in  the  Seventh  Presby- 
terian Church — the  place  appointed  for  the  meeting  of  the  Assembly 
of  1838.  It  was  the  duty  of  Dr.  Elliott,  the  moderator  of  the  last 
year,  to  preach  a  sermon  at  the  opening  of  this  Assembly,  and 
preside  during  its  organization,  until  the  election  of  a  new  mode- 
rator. After  the  customary  religious  services,  he  accordingly  took 
the  chair.     When  the  body  was  about  to  be  organized,  Dr.  Patlon, 

3 


26 

a  commissioner  from  the  Third  Presbytery  of  New  York,  rose> 
stating  that  he  wished  to  offer  certain  resolutions,  which  he  held  in 
his  hand.  The  Moderator  declared  him  out  of  order.  Dr.  Patton 
appealed  from  his  decision,  and  the  Moderator  declared  the  appeal 
also  out  of  order,  and  refused  to  put  the  question  upon  it  to  the 
house,  saying  that  the  first  business  in  order  was  the  report  of  the 
clerks  upon  the  roll.  Dr.  Patton  then  took  his  seat,  and  the  clerks 
proceeded  with  their  report.  This  being  concluded,  the  Moderator 
announced,  that  if  there  were  any  commissioners  present  whose 
names  had  not  been  enrolled,  that  was  the  time  for  them  to  present 
their  commissions.  Upon  this  call.  Dr.  Mason,  also  a  delegate  from 
the  Third  Presbytery  of  New  York,  rose,  and  holding  in  his  hand 
the  commissions  from  the  excinded  synods,  tendered  them  to  the 
moderator,  informing  him  that  they  had  been  presented  to  the  clerks, 
and  by  them  refused,  and  moved  that  the  roll  should  be  completed 
by  the  addition  of  the  names  contained  in  these  commissions.  The 
Moderator  declared  this  motion  also  out  of  order,  though  it  was  in 
answer  to  his  own  call,  and  though  the  report  upon  the  roll  had 
then  been  concluded.  Dr.  Mason  respectfully  appealed  from  the 
decision:  his  appeal  was  seconded;  but  the  Moderator,  as  before, 
declared  it  out  of  order,  and  declined  putting  the  question  to  the 
house,  that  it  might  judge  of  the  correctness  of  his  decision. 

Under  these  circumstances.  Dr.  M'Dowell,  and  Mr.  Krebs,  acting 
as  the  Committee  of  Commissions,  having  violated  their  duty,  and 
Dr.  Elliott,  as  Moderator,  having  upheld  them  in  their  illegal  course, 
and  created  himself  an  autocrat — I  use  the  term  without  intending 
any  personal  disrespect — exercising  the  illimitable  power  of  deter- 
mining every  question,  and  every  right,  without  admitting  any 
appeal  from  his  decision  to  the  house,  of  which  they  all  were  but 
ministerial  officers,  it  became  absolutely  necessary  to  depose  these 
officers,  in  order  to  secure  a  constitutional  organization  of  the  As- 
sembly. Accordingly,  at  this  period,  the  Rev.  John  P.  Cleveland, 
a  commissioner  from  the  Presbytery  of  Detroit,  rose,  and  stated 
the  difficulty  that  had  occurred,  and  the  necessity  that  a  constitu- 
tional organizaiion  should  be  then  and  there  effected,  moved  that 
Dr.  Beman,  of  the  Presbytery  of  Troy,  should  be  temporary  Mo- 
derator, and  put  the  question  to  all  the  commissioners  present.  The 
motion  was  almost  unanimously  carried — there  being,  however,  a 
few  votes  in  the  negative.  The  Assembly  thus  constituted,  Dr. 
Fisher  was  chosen  Moderator,  and  Dr.  E.  Mason  and  the  Rev.  E. 
W.  Gilbert  were  chosen  Clerks,  and  then  adjourned  to  the  First  Pres- 
byterian church  of  this  city,  where  it  sat  in  the  regular  discharge 
of  its  ordinary  duties,  for  nearly  two  weeks. 

We  shall  contend  that  the  original  excision  of  the  four  Western 
Synods  was  void,  unconstitutional,  and  unlawful,  and  without  pre- 
cedent or  authority;  that  the  Rev.  Dr.  Elliott  had,  in  attempting  to 
carry  into  effect,  in  the  organization  of  the  Assembly  of  1838,  the 
illegal  acts  of  the  Assembly  of  1837,  forfeited  his  right  to  the  mo- 
derator's chair :  in  short,  that  there  was  an  imperative  necessity  for 
his  removal,  as  also  for  the  removal  of  the  clerks,  who,  equally 
with  him,  had  usurped  an  authority  unconstitutional. 


27 

The  General  Assembly,  organized  as  I  have  described,  held 
its  session  in  the  First  Presbyterian  church,  and  in  the  course  of 
its  proceedings,  on  the  twenty-fourth  of  May,  1838,  according  to 
the  provisions  of  section  0,  of  their  charter  of  incorporation, 
elected  six  trustees,  namely:  James  Todd,  Frederick  A.  Raybold, 
Geo.  W.  McClelland,  William  Darling,  Thomas  Fleming,  and  John 
R.  Neff,  respectively,  in  the  place  of  Dr.  Ashbel  Green,  William 
Latta,  Thomas  Bradford,  Solomon  Allen,  Dr.  Cornelius  C.  Cuyler, 
and  George  C.  Potts.  The  question,  gentlemen,  that  you  are  to 
decide  is,  whether  the  gentlemen  last  mentioned  were  lawfully  re- 
moved from  their  places  by  such  election — whether  they  have  a 
right  to  exercise  the  offices  which  they  continue  to  hold  and  exer- 
cise. In  other  words,  you  have  to  decide,  whether  the  Assembly 
constituted,  as  above  explained,  which  met  in  the  First  Presbyterian 
church,  or  the  body  which  remained  in  the  Seventh  Presbyterian 
church,  was  the  true  and  only  General  Assembly. 

One  feature  of  this  case,  gentlemen,  I  hope  will  be  remembered 
during  this  inquiry.  Our  object  is  to  preserve  the  unity  of  the 
church.  We  do  not  deny  the  rights  of  our  opponents ;  but  we  deny 
their  power  to  exclude  from  the  communion  of  the  church,  without 
charge,  accusation,  or  trial,  the  body  of  Presbyterians  who  reside 
within  the  bounds  of  the  four  excinded  synods.  We  come  into 
court  reluctantly,  and  our  effort  is,  not  to  take  away  the  rights  of 
others,  but  to  preserve  our  own  inviolate. 

Mr.  Randall,  having  concluded,  proceeded  to  read  the  pleadings 
in  the  casft,  of  Tvhioh  the  following  is  an  abstract. 

The  suggestion  verified  by  the  affidavit  of  one  of  the  relators, 
Frederick  A.  Raybold,  Esq.,  on  which  the  writ  was  issued,  sets  forth 
that  the  defendants  have  exercised,  since  the  twenty-fourth  day  of 
May,  1838,  and  do  still  exercise  the  franchises  and  privileges  of 
trustees  of  the  General  Assembly,  without  lawful  authority,  since, 
on  the  day  mentioned,  the  relators  were  duly  elected  to  that  office; 
and  prays  that  the  said  defendants  may  be  made  to  answer,  by 
what  warrant  they  claim  their  places.  To  this,  Ashbel  Green 
pleads  his  appointment  under  the  original  act  of  incorporation,  and 
Thomas  Bradford,  Cornelius  C.  Cuyler,  and  Solomon  Allen,  in 
separate  pleas,  their  regular  election  by  the  General  Assembly; 
and  all  deny  that  any  thing  has  happened  to  determine  their  offices. 
Then  follow  replications  to  these  pleas,  setting  forth  the  choice  of 
James  Todd,  George  W.  McClelland,  Thomas  Fleming,  and  Wil- 
liam Darling,  in  the  place  of  the  four  defendants  named,  according 
to  the  provisions  of  the  act  of  incorporation.  The  rejoinders  deny 
such  choice,  and  on  this  fact  issue  is  joined.  William  Latta,  though 
his  name  appears  in  the  suggestion  and  in  the  writ,  was  not  served 
with  a  process,  and  takes  no  part  in  the  pleading. 

[The  pleadings,  in  full,  are  placed  on  preceding  pages,  12  to  19, 
of  this  Report.] 


28 

The  plaintiffs  in  support  of  this  case,  then  read  in  evidence,  the 
Act  of  the  Legislature  of  Pennsylvania,  passed  May  28th,  1799. 
(Assembly's  Digest,  pp.  192  to  198,)  entitled, 

"An  Act  for  incorporating-  the  Trustees  of  the  Ministers  and  Elders,  constituting' 
the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica." 

"Whereas  the  ministers  and  elders  forming-  the  General  Assembly  of  the  Presb34e- 
rian  Church  in  the  United  States  of  America,  consisting  of  citizens  of  the  state  of 
Pennsylvania,  and  of  others  of  the  United  States  of  America  aforesaid,  hare  by 
their  petition  represented,  that  by  donations,  bequests  or  otherwise,  of  charitably 
disposed  persons,  they  are  possessed  of  moneys  for  benevolent  and  pious  purposes, 
and  the  said  ministers  and  elders  have  reason  to  expect  farther  contributions  for 
similar  uses  ;  but  from  the  scattered  situation  of  the  said  ministers  and  elders,  and 
other  causes,  the  said  ministers  and  elders  find  it  extremely  difficult  to  manage 
the  said  funds  in  the  way  best  calculated  to  answer  the  intention  of  the  donors  ; 
Therefore, 

Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Com- 
monwealth of  Pennsylvania,  in  General  Assembly  met,  and  it  is  hereby  enacted  by 
the  authority  of  the  same.  That  John  Rogers,  Alexander  McWhorter,  Samuel  Stan- 
hope Smith,  Ashbel  Green,  William  M.  Tennant,  Patrick  Allison,  Nathan  Irwin, 
Joseph  Clark,  Andrew  Hunter,  Jared  Ingersoll,  Robert  Ralston,  Jonathan  R.  Smith. 
Andrew  B.ayard,  Elias  Boudinot,  John  Nelson,  Ebenezer  Hazard,  David  Jackson, 
and  Robert  Smith,  merchant,  and  their  successors  duly  elected  and  appointed  in 
manner  as  is  hereinafter  directed,  be,  and  they  are  hereby  made,  declared  and 
constituted,  a  corporation  and  body  politic  and  corporate,  in  law  and  in  fact,  to 
have  continuance  for  ever,  by  the  name,  style,  and  title  of  "  Trustees  of  the  Gene- 
ral Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America ;"  and 
by  the  name,  style,  and  title  aforesaid,  shall,  for  ever  hereafter,  be  persons  able  and 
capable  in  law  as  well  to  take,  receive  and  hold,  &c.  &c.  &c. 
Sec.  2.  Provides  as  to  gifts  and  devises  to  the  said  corporation. 
Sec.  3.   Relates  to  the  corporate  seal. 

Sec.  4.    Relates  to  powers  and  liabilitiea  of  the  corporation  to  sue  and  be  sued. 

Sec.  5.  Authorizes  said  corporation  to  make  by-laws. 

Sec.  6.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  said  cor- 
poration shall  not,  at  any  time,  consist  of  more  than  eighteen  persons  :  whereof 
the  said  General  Assembly  may,  at  their  discretion,  as  often  as  they  shall  hold  their 
sessions  in  the  state  of  Pennsylvania,  change  one-third,  in  such  manner  as  to  the 
said  General  Assembly  shall  seem  proper  :  And,  the  corporation  aforesaid,  shall 
have  power  and  authority  to  manage  and  dispose  of  all  moneys,  goods,  chattels, 
lands,  tenements  and  hereditaments,  and  other  estate  whatsoever,  committed  to 
their  care  and  trust  by  the  said  General  Assembly,  but  in  cases  where  special  in- 
structions for  the  management  and  disposal  thereof,  shall  be  given  by  the  said  Ge- 
neral Assembly  in  writing,  under  the  hand  of  their  clerk,  it  shall  be  the  duty  of  the 
said  corporation,  to  act  according  to  such  instructions  :  Frovided,  the  said  instruc- 
tions shall  not  be  repugnant  to  the  constitution  and  laws  of  the  United  States,  or 
to  the  constitution  and  laws  of  this  commonwealth,  or  to  the  provisions  and  i-estric- 
tions  in  this  act  contained. 

Sec.  7,  8,  9  and  10  relate  to  the  proceedings  and  powers  of  the  said  corpora- 
tion. 

The  plaintiffs  then  read  in  evidence  the  Act  of  the  General  As- 
sembly itself  (Digest,  p.  198,)  prescribing  the  mode  of  choosing 
Trustees,  in  accordance  with  the  charter. 

The  mode  of  choosing  the  trustees,  adopted  in  1801. 

The  General  Assembly  took  into  consideration  the  important  concern  of  voting^ 
for  trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States,  agreeably  to  the  provision  made  in  the  sixth  section  of  the  act  of  the  Le- 
gislature constituting  the  charter  of  incorporation.  After  maturely  discussing  this 
subject,  the  Assembly  resolved,  that  it  is  expedient  to  adopt  and  recommend  the 
following  system  : — 1.  That  when  this  subject  is  called  up  annually,  a  vote  shall 
first  be  taken  whether,  for  the  current  year,  the  Assembly  will,  or  will  not,  make 
any  election  of  members  in  the  board  of  Trustees.  2.  If  an  election  be  determin- 
ed on,  the  day  on  which  it  shall  take  place  shall  be  specified,  and  shall  not  be 
within  less  than  two  days  of  the  time  at  which  such  an  election  shall  be  decided 


29 

on.  3.  When  the  day  of  election  arrives,  the  Assembly  shall  ascertain  what  va- 
cancies in  the  number  of  the  eighteen  trustees  incorporated,  have  taken  place  by 
death  or  otherwise  ;  and  shall  first  proceed  to  choose  other  members  in  their 
places.  When  this  is  accomplished,  they  shall  proceed  to  the  trial  whether  they 
will  elect  any,  and  if  any,  how  many  of  that  third  of  the  number  of  the  trustees 
which  by  law  they  are  permitted  to  change,  in  the  following  manner  :  viz .  The 
list  of  tlie  trustees  shall  be  taken,  and  a  vote  be  had  to  fill  the  place  of  him  who  is 
first  on  the  list.  In  voting  for  a  person  to  fill  said  place,  the  vote  may  be  given 
either  for  the  person  who  has  before  filled  it,  or  for  any  other  person  :  if  the  ma- 
jority of  votes  shall  be  given  for  the  person  who  has  before  filled  it,  he  shall  con- 
tinue in  office ;  if  the  majority  of  votes  shall  be  given  for  another  person,  this 
person  is  a  trustee,  duly  chosen  in  place  of  the  former.  In  the  same  form  the  As- 
sembly shall  proceed  with  the  list,  till  they  have  either  changed  one-third  of  tlie 
trustees,  (always  including  in  the  third  those  who  have  been  elected  by  the  sitting 
Assembly  to  supply  the  places  that  become  vacant  b)'  death  or  otherwise,)  or  by 
going  through  the  list,  shall  determine  that  no  further  alterations  shall  be  made. — 
Vol.  i.  p.  252. 

The  plaintiffs  then  gave  in  evidence  the  constitution  of  the  Pres- 
byterian Church,  with  the  form  of  government  and  discipline,  as 
amended  and  ratified  by  the  General  Assembly  in  May,  1821,  and 
the  report  of  the  committee  as  to  the  ratification  of  the  amendments, 
from  the  Assembly's  minutes  of  1821,  page  5. 

The  minute  in  relation  to  the  adoption  of  the  amended  constitu- 
tion, is  as  follows : 

The  presbyteries  were  called  upon  to  report  their  several  decisions  on  the  re- 
vised form  of  government  and  forms  of  process,  sent  down  by  the  last  Assembly, 
and  their  reports  being  read,  were  committed  to  Dr.  McDowell  and  Mr.  Chester, 
to  ascertain  precisely  the  opinions  of  the  several  presbyteries  on  the  subject,  and 
report  their  decision  tot  his  Assembly.  *  *  * 

The  Committee  appointed  to  ascertain  the  decisions  of  the  several  presbyteries 
on  the  subject  of  the  revised  form  of  government,  and  forms  of  process,  and  the 
amendments  to  the  directory,  sent  down  by  the  last  Assembly,  reported,  and  their 
report  being  read,  was  adopted,  and  is  as  follows,  viz  : 

That  there  are  connected  with  this  Assembly,  sixty-two  presbyteries ;  that  there- 
fore the  affirmative  vote  of  thirty-two  presbyteries  is  necessary  to  make  any  one 
article  binding  ;  that  forty -five  presbyteries  have  reported  to  the  Assembly  their 
decisions  on  each  chapter,  section,  and  article  ;  that  from  these  reports  it  appears 
that  most  of  the  articles  have  been  adopted  unanimously,  and  that  every  chapter, 
section,  and  article,  has  been  adopted  by  a  majority  of  the  whole  number  of  pres- 
byteries ;  that  the  smallest  number  of  votes  given  for  any  one  article  is  thirty -seven ; 
that,  therefore,  the  whole  of  the  amendments  sent  down  by  the  last  Assembly  to 
the  presbyter.es  is  ratified,  and  becomes  a  part  of  the  constitution. 

In  relation  to  this  subject,  Mr.  Randall  said — 

Previous  to  the  year  1821,  when  the  revised  or  amended  consti- 
tution, including  the  Form  of  Government,  was  adopted  by  the 
presbyteries,  the  Synod  of  Geneva  had  been  erected  out  of  a  part 
of  the  Synod  of  Albany,  and  then  comprised  the  presbyteries  of 
Onondaga,  Bath,  Geneva,  Ontario,  Niagara,  Rochester,  and  Ge- 
nessee. 

The  presbyteries  of  St.  Lawrence,  Oneida,  and  Otsego,  now 
within  the  bounds  of  the  Synod  of  Geneva,  then  belonged  to  the 
Synod  of  Albany;  and  the  presbyteries  of  Grand  River  and  Port- 
age, wow  belonging  to  the  Synod  of  the  Western  Reserve,  were  part 
of  the  Synod  of  Pittsburgh.  It  therefore  appears,  that  of  the 
twenty-eight  presbyteries  at  present  within  the  bounds  of  the  four 
excluded  synods,  fourteen,  having  been  erected  prior  to  that  time, 
participated  in  the  adoption  of  the  amended  constitution,  as  is  seen 
by  the  minutes  of  the  Assembly  given  in  evidence, 

3* 


30 

The  plaintiffs  then  read  the  following  sections  from  the  form  of 
government : 

chap.  X.  Of  the  Presbytery.  Sec.  2.  A  presbytery  consists  of  all  the  minis- 
ters, with  one  ruling-  elder  from  each  congregation  within  a  certain  district.  (Page 
357.) 

Sec.  7.  Any  three  ministers,  and  as  many  elders  as  may  be  present,  belonging  to 
the  presbytery,  being  met  at  the  time  and  place  appointed,  shall  be  a  quorum  com- 
petent to  proceed  to  business.     (Page  358.) 

Chap.  XI.  Of  the  Synod.  Seel.  As  a  presbytery  is  a  convention  of  the  bishops 
and  elders  within  a  certain  district ;  so  a  synod  is  a  convention  of  the  bishops  and 
elders  within  a  larger  district,  including  at  least  three  presbyteries. 

The  ratio  of  the  representation  of  elders  in  the  synod  is  the  same  as  in  the  pres- 
bytery.    (Page  361.) 

Sec.  2.  Any  seven  ministers  belonging  to  the  synod,  who  shall  convene  at  the 
time  and  place  of  meeting,  with  as  many  elders  as  may  be  present,  shall  be  a  quo- 
rum to  transact  synodical  business,  provided,  not  more  than  three  of  the  said  mi- 
nisters belong  to  one  presbytery.     (Page  362.) 

('hap.  XII.  Of  the  General  Assembly.  Sec.  1.  The  General  Assembly  is  the  high- 
est judicatory  of  the  Presbyterian  Church.  It  shall  represent  in  one  body,  all  the 
particular  churches  of  this  denomination ;  and  shall  bear  the  title  of  The  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America.     (Page  363.) 

Sec.  2.  The  General  Assembly  shall  consist  of  an  equal  delegation  of  bishops  and 
elders  from  each  presbytery,  in  the  following  proportion,  viz.  :  each  presbyterj' 
consisting  of  not  more  than  24  ministers,  shall  send  one  miniscer  and  one  elder  : 
and  each  presbytery  consisting  of  more  than  24  ministers  shall  send  two  ministers 
and  two  elders ;  and  in  the  like  ])roportion  for  every  24  ministers  in  any  presby- 
tery ;  and  these  delegates  so  appointed  shall  be  styled  Commissimiers  to  the  General 
Assembly. 

Sec.  3.  Any  fourteen  or  more  of  these  commissioners,  one-half  of  whom  shall 
be  ministers,  being  met  on  the  day,  and  at  the  place  appointed,  shall  be  a  quorum 
for  the  transaction  of  business.     (Page  364.) 

The  plaintiffs  than  read  in  evidence  the  following  resolutions  of 

the  Assembly  creating  synods  : 

Synod  of  Albany.     Minutes,  Vol.  2,  1803, /?a^e  17. 

Resolved,  That  the  Presbyteries  of  Albany,  Oneida  and  Columbia,  be,  and  they 
hereby  are,  constituted  and  formed  into  a  synod,  to  be  known  by  the  name  of  the 
Synod  of  Albany;  tliat  they  hold  their  first  meeting  in  the  Presbyterian  Church  of 
Albany  on  the  first  Wednesday  of  October  next,  at  2  o'clock  P.  M.,  and  be  opened 
with  a  sermon  by  the  Rev.  Jedediah  Chapman;  or,  in  case  of  his  absence,  by  the 
next  senior  minister  who  may  be  present;  and  that  they  afterwards  meet  on  their 
own  adjournments. 

Synod  of  Geneva.    Minutes.  Vol.  3,  page  23. 

The  following  application  from  the  Synod  of  Albany,  was  overtured  by  the  com- 
mittee of  overtures,  that  the  said  synod  be  divided  in  the  manner  following,  viz: 
That  the  Presbyteries  of  Londonderry,  Columbia,  Albany  and  Oneida,  form  the  Eas- 
tern division,  and  be  constituted  a  synod,  to  be  called  and  known  by  the  name  of  the 
Synod  of  Albany;  and  that  they  hold  their  first  meeting  in  the  Presbyterian  Church 
in  the  city  of  Albany,  on  the  first  Wednesday  in  October  next,  at  11  o'clock,  A. 
M.,  and  that  the  meeting  be  opened  with  a  sermon  by  the  Rev.  Samuel  Blatchford, 
D.  D.,  and  in  case  of  his  absence,  then  by  the  oldest  minister  present.  That  the 
Presbyteries  of  Onondaga,  Cayuga  and  Geneva,  form  the  Western  division,  and 
be  constituted  a  synod;  to  be  called  and  known  by  the  name  of  the  Synod  of  Ge- 
neva; and  that  they  hold  their  first  meeting  in  the  first  Presbyterian  Church  in  Ge- 
neva, on  the  first  W^ednesday  in  October  next,  at  11  o'clock  A.  M.,  and  that  the 
meeting  be  opened  with  a  sermon  by  the  Rev.  David  Higgins,  and,  in  case  of  his 
absence,  then  by  the  oldest  minister  present. 

Resolved,  That  the  Synod  of  Albany  be  divided  as  above;  and  it  hereby  is  accord- 
ingly  divided. 

Synod  of  Genessee.    Minutes,  1825,  Vol.  5,  page  10. 
The  Synod  of  Geneva  requested  that  said  synod  be  divided  in  the  following  man- 
ner, and  their  request  was  granted,  viz: 
That  the  Presbyteries  of  Niagara,  Genessee,  Rochester  and  Ontario,  be  erected 


31 

into  a  synod,  to  be  known  by  the  name  of  the  Synod  of  Genessee,  and  that  they  hold 
their  first  meeting'  at  Rochester,  on  the  third  Tufesday  of  September  next,  at  2 
o'clock  P.  M.,  and  be  opened  with  a  sermon  by  the  Rev.  Ebenezer  Fitch,  D.  D., 
or,  in  case  of  his  absence,  by  the  senior  minister  present,  and  afterwards  meet  on 
their  own  adjournments;  that  the  remaining'  presbyteries  constitute  the  Syncd  of 
Geneva,  and  that  they  meet  on  their  own  adjournments. 

Synod  of  the  Western  Reserve,    Minutes,  1825,  Vol.  5, page  263. 

Application  was  made,  throug-h  the  committee  of  overtures,  to  erect  a  new  sy- 
nod, to  be  composed  of  certain  presbyteries  in  the  Synod  of  Pittsburgh.  The  As- 
sembly, after  hearing-  the  papers  in  relation  to  this  application  read,  and  duly  con- 
sidering' the  subject. 

Resolved,  That  the  Presbyteries  of  Grand  River,  Portage  and  Huron,  be,  and  they 
hereby  are,  detached  from  the  Synod  of  Pittsburgh,  and  constituted  a  new  synod, 
to  de  designated  by  the  name  of  the  Synod  of  the  Western  Reserve ;  that  they  hold. 
their  first  meeting  at  Hudson,  on  the  fourth  Tuesday  of  September  next,  at  11 
o'clock  A.  M.,  and  tliat  the  Rev.  Joseph  Badger  preach  the  synodical  sermon,  and 
act  as  moderator  till  another  shall  be  chosen;  or,  in  case  of  his  failure,  then  the 
oldest  minister  present  shall  officiate  in  his  place. 

Synod  of  Utica.    Minutes  of  1829,  page  373,  Vol.  5. 

Overture  No.  3, — an  application  from  the  Synod  of  Albany,  for  the  erection  of  a 
new  synod  was  taken  up,  when  it  \i'as  resolved  that  the  request  be  granted  agree- 
ably to  the  request  of  the  synod,  the  Presbyteries  of  Ogdensburg,  Watertown,  Os- 
wego, Oneida,  and  Otsego  are  hereby  constituted  a  new  synod,  to  be  called  the  Sy- 
nod of  Utica. 

Resolved,  Tliat  the  Synod  of  Utica  hold  their  first  meeting  in  Utica,  in  the  First 
Presbyterian  church,  on  the  Tuesday  preceding  the  third  Wednesday  of  Septem- 
ber next,  at  7  o'clock,  P.  M.,  and  that  the  Rev.  Israel  Brainerd  preach  the  opening 
sermon,  and  preside  until  a  moderator  is  chosen,  and  in  case  of  his  absence,  these 
duties  shall  devolve  on  the  senior  minister  present. 

Plaintiffs'  counsel  then  read  extracts  from  the  records  of  the  As- 
sembly, showing  that  it  had  extended  its  jurisdiction  over  the  iern- 
torij  of  the  excinded  synods  for  thirty-six  years;  that  the  validity  of 
their  presbyteries,  in  all  this  time,  had  not  been  questioned. 

In  1801,  (Minutes,  page  18,  vol  1,)  the  Assembly  appointed  mis- 
sionaries to  labour  in  the  region  embraced  in  those  synods. 

1802,  (id.  p.  8,)  the  Assembly  divided  the  Presbytery  of  Albany, 
and  formed  the  Presbytery  of  Oneida. 

1802.  Rev.  J.  Chapman,  the  Assembly's  missionary,  reported  to 
that  body  that  he  had  organized  three  churches  in  the  Genessee 
country.  The  General  Assembly  appointed  a  missionary  to  labour 
within  [what  is  now  the  territory  of  the  Synod  of  Geneva.]  (id. 
page  12.) 

1803.  Oneida  Presbytery  reported  as  having  done  its  duty  in 
contributing  to  the  Assembly's  funds  for  missions.  The  Presbytery 
of  Oneida,  with  those  of  Albany  and  Columbia,  were  this  year 
erected  into  the  Synod  of  Albany  by  the  General  Assembly,  (id. 
page  16.) 

1804.  The  Assembly  appointed  missionaries  to  labour  in  West- 
ern New  York,  and  the  Presbytery  of  Oneida  contributed  to  its 
contingent  fund.     (id.  61,  69.) 

1805.  Oneida  Presbytery  contributed  to  the  contingent  funds  of 
the  Assembly.  This  presbytery  also  reported  its  approval  of  cer- 
tain amendments  to  the  constitution.  The  Assembly  divided  this 
presbytery,  and  formed  out  of  it  the  presbyteries  of  "Oneida"  and 
"  Geneva.'"     (Vol.  2,  pages  82,  90,  108.) 


32 

1806.  The  Oneida  Presbytery  contributed  to  the  General  Assem- 
bly's missionary  funds.  The  Assembly  order  its  Committee  of 
Missions  to  cause  a  number  of  copies  of  the  Plan  of  Union  between 
Presbyterians  and  Congregationalists  to  be  printed  and  delivered 
to  the  missionaries  sent  to  Western  New  York.     (id.  141.) 

1807.  The  Oneida  Presbytery  contribute  to  the  missionary  funds 
of  the  General  Assembly,     (id.  173.) 

1808.  The  Presbyteries  of  Oneida  and  Geneva  contribute  to  the 
same  funds;  also  to  the  commissioners'  fund.  In  the  minutes  of 
this  year  there  is  a  record  of  the  Assembly's  approval  of  the  con- 
duct'of  these  presbyteries,     (id.  188,  189,  197.) 

In  1809,  The  presbyteries  just  named  contribute  to  the  Assem- 
bly's missionary,  education  and  commissioners'  funds,  (id.  220, 
230,  252.) 

In  1810,  the  same  presbyteries  are  reported  as  having  done  their 
duty  in  raising  funds  for  the  Assembly,     (id.  278,  288.) 

In  1811,  the  Presbyteries  of  Oneida,  Geneva,  Onondaga  and 
Cayuga,  contribute  to  the  Assembly's  missionary  and  commission- 
ers' funds,     (id.  353.) 

In  1812,  the  same  presbyteries  contribute  to  the  Assembly's 
funds  for  missions,  &c.     (vol.  3,  page  30.) 

In  1813,  they  do  the  same.  The  Assembly  also  acknowledges 
the  receipt  of  funds  for  the  Theological  Seminary  at  Princeton, 
(vol.  3,  pp.  85,  101.) 

In  1814,  a  similar  acknowledgment  is  found  in  the  Assembly's 
minutes,     (id.  141.) 

In  1815,  the  Assembly  acknowledges  the  receipt  of  funds 
($1666.26)  from  the  excinded  region,  for  the  Seminary  at  Prince- 
ton. Also  funds  for  missions,  education,  &c.,  from  the  same 
source,     (id.  250,  267.) 

1816.  The  Presbyteries  of  Onondaga  and  Geneva  raise  money 
for  the  Seminary  at  Princeton;  and  these  and  two  other  presbyte- 
ries in  that  region  contribute  to  the  missionary  and  commissioners' 
funds,     (id.  313,  318,  330  and  337.) 

1817.  These  presbyteries  report  funds  for  the  education  cause. 
The  Presbytery  of  Grand  River,  in  the  Western  Reserve  Synod, 
contribute  to  the  funds  for  the  Theological  Seminary  at  Princeton, 
(vol.  4,  p.  9.) 

1818.  The  records  of  the  Assembly  acknowledge  the  receipt  of 
moneys  from  the  excinded  districts  for  the  Theological  Seminary 
at  Princeton.  The  Presbyteries  of  Niagara,  Ontario,  Bath,  Gene- 
va, and  Cayuga,  contribute  to  the  Assembly's  education  and  com- 
missioners' funds,     (id.  59,  61,  83.) 

1819.  Several  of  the  excinded  presbyteries  vote  on  alterations 
to  the  constitution;  and  Grand  River,  Portage,  Ontario,  Bath,  Ge- 
neva, and  Onondaga,  contribute  to  the  Assembly's  education  funds, 
(id.  158.) 

The  Assembly  this  year  commend  some  of  the  excinded  presby- 
teries, for  having  done  their  duty  in  educating  men  for  the  ministry, 
(id.  159  and  200  to  211.) 

1820.  The   presbyteries   of   Ontario,   Cayuga,   Geneva,  Bath, 


33 

Oneida,  Onondaga,  Portage  and  Grand  River,  are  commended 
for  having  faithfully  attended  to  the  education  of  men  for  the  min- 
istry,    (id.  306,  345,  6,  7,  8,  9.) 

1821.  The  revised  form  of  government  was  voted  for  by  the 
presbyteries  which  have  been  excinded.  The  General  Assembly 
designate  a  line  bounding  the  Synods  of  Pittsburgh  and  Geneva. 
The  presbyteries  of  Geneva,  Rochester,  Cayuga,  St.  Lawrence, 
Otsego,  Portage,  Hartford  and  Grand  River,  all  contribute  to  funds 
for  education.  Theological  Seminary,  missions  and  commissioners. 
The  General  Assembly,  this  year,  divide  the  Synod  of  Geneva,  and 
form  the  Synod  of  Genessee.  (vol.  5,  pp.  5,  6,  10,  12  and  16,  31 
to  41.) 

1822.  The  Assembly  recognise  said  excinded  presbyteries  as 
under  their  care.     (See  vol.  5,  pp.  8  &  9.) 

The  Assembly  approve  the  records  of  the  Synod  of  Geneva, 
(p.  12.) 

The  Assembly,  in  a  compendious  view,  include  as  under  their 
care  the  excinded  presbyteries,     (p.  19.) 

The  excinded  presbyteries  contribute  as  in  previous  years,  to  the 
Assembly's  funds  for  different  purposes.  The  Assembly  appoint  a 
missionary  to  labour  in  that  region,  who  was  pastor  of  a  Presbyte- 
rian Church  at  Buffalo.     (Vol.  5,  p.  45  to  59.) 

1823.  Assembly  issued  a  complaint  against  Synod  of  Genessee, 
(id.  135.)     Minutes  of  Synod  of  Genessee  approved,     (id.  145.) 

The  excinded  presbyteries  reported  contributions  to  education 
funds  for  the  ministry. '  (id.  159,  160,  161.) 

Report  of  the  Board  of  Education,  established  by  the  General  Assembly,-  for  May,  1823. 

This  year  no  reports  have  been  received  from  the  Presbyteries  of  Northumber- 
land, Grand  River,  &.c.  The  presbyteries  which  have  reported  are  the  follow- 
ing, viz: 

1.  Genessee,  which  has  one  young  man  under  its  care,  and  has  expended  last  year 
nineteen  dollars. 

2.  Rochester,  which  supports  three  beneficiaries. 

3.  Geneva,  which  has  two  youths  under  its  care,  and  co-operates  with  the  West- 
ern Education  Society. 

4.  Bath,  which  has  one  beneficiary,  raised  last  year  twenty -six  dollars  thirty-four 
cents,  and  expended  twenty-five  dollars. 

5.  Oneida,  which  has  nine  beneficiaries. 

6.  Onondaga,  which  aids  five  young  men  in  board  and  clothing,  &c. 

1824.  The  same  was  done.  The  Assembly,  this  year,  send 
missionaries  to  the  excinded  region,     (id.  235.) 

1825.  The  Presbytery  of  Geneva  is  decided  to  be  competent  to 
try  two  elders,  &c.  (id.  p.  262.)  Funds  raised  in  these  synods  are 
reported  in  the  minutes,  (id.  335  to  360.)  The  Assembly  appoint 
more  missionaries  to  labour  in  the  excinded  region,     (id.  300.) 

1826.  The  excinded  presbyteries  vote  on  an  alteration  of  the  con- 
stitution, (vol.  6,  p.  11.)  Funds  are  reported  as  usual,  from  these 
presbyteries,  (id.  63,  4,  5,  6  &  7.)  The  Assembly  this  year,  form 
the  Presbytery  of  Chenango,  of  ministers  detached  from  the  Pres- 
byteries of  Otsego,  Cayuga,  Columbia  and  Susquehanna,  and  attach 
said  presbytery  to  the  Synod  of  Geneva,  (id.  21.)  The  Assembly 
appoint  missionaries  again  to  labour  in  the  excinded  region,  (id.  59.) 


34 

1827.  Presbytery  of  Detroit  attached  to  the  Synod  of  Western 
Reserve,  (id.  120.)  Records  of  Synod  of  Genessee  approved  by 
General  Assembly:  (id.  121.)  Dr.  H.  Axtill  of  Geneva  and  Horace 
Hill  of  Auburn,  members  of  the  Board  of  Education,  (id.  147.) 

The  excinded  presbyteries  contributed  to  the  Commissioners, 
Education,  Theological  Seminary  and  Missionary  funds.  (Page 
178  to  183.) 

1828.  Funds  contributed  for  Missionary,  Commissioners,  Theo- 
logical Seminary  and  Education  purposes,    (p.  282  to  284.) 

1829.  Records  of  Synod  of  Geneva  and  Western  Reserve,  ap- 
proved, (id.  371-2.)  Funds  to  Missions,  Commissioners,  Educa- 
tion and  Theological  Seminary,  (p.  439  to  442.) 

1830.  The  Assembly  give  instructions  to  the  Presbytery  of  St. 
Lawrence,  (p.  30.)  Moneys  acknovi'ledged  from  the  excinded 
presbyteries,  (pp.  65,  66  &  67.) 

1831.  The  Assembly  detach  a  church  from  the  Synod  of  New 
Jersey  and  put  it  into  the  Synod  of  Geneva,  (p.  175.)  The  records 
of  the  Synods  of  Geneva,  Genessee  and  Western  Reserve  approved 
by  the  General  Assembly,  (p.  184.)  Funds  acknowledged  as  raised 
in  the  presbyteries  excinded.  (id.  221  to  263.) 

1832.  The  records  of  the  Synods  of  Utica  and  Western  Reserve, 
approved  by  the  General  Assembly,  (p.  324.)  Funds  received 
from  excinded  presbyteries,  (id.  367  to  418.) 

1833.  The  Rev.  Sylvester  Eaton  was  elected  temporary  clerk 
of  the  General  Asspmbly.  Mr.  Eaton  was  from  the  Presbytery  of 
Buffalo.  (Vol.  6,  p.  173.) 

The  excinded  presbyteries  vote  on  a  proposed  alteration  in  the 
constitution,  (p.  485.)  The  committee  appointed  to  examine  the 
records  of  the  Synods  of  Utica  and  Genessee,  reported,  and  those 
records  were  approved,  (p.  485.)  The  Synod  of  the  Western 
Reserve  gave  an  answer  to  certain  questions  proposed  to  them  by 
the  General  Assembly.  (See  p.  489.)  And  the  Assembly  approve 
their  records,  with  a  single  exception,     (pp.  489  &  490.) 

The  committee  to  whom  was  referred  the  report  of  the  Synod  of  the  Western 
Reserve  made  a  report,  which  being  read  and  amended,  was  adopted,  and  is  as 
follows,  viz.  After  having  maturely  considered  the  subject  referred  to  them,  they 
recommend  to  the  Assembly,  without  approving  the  views  of  the  synod  in  relation 
to  order  and  discipline,  as  stated  in  their  report,  that  the  report  be  accepted  and 
printed  in  the  Minutes  of  the  Assembly. 

The  report  of  the  Synod  is  as  follows: 

Report  of  the  Synod  of  the  Western  Reserve  to  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States  of  America,  in  relation  to  the  direction 
to  this  synod,  by  the  last  Assembly,  recorded  in  their  printed  minutes,  p.  327. 

At  the  stated  meeting  of  the  Synod  of  the  Western  Reserve,  held  at  Detroit, 
Oct.  18th,  1832,  the  following  resolution  was  adopted,  viz. 

Resolved,  That  in  reference  to  the  point  named  by  the  Assembly,  as  having 
been  charged  by  common  rumour  against  this  synod;  the  synod  having,  as  their 
custom  is,  and  agreeably  to  the  direction  of  the  Assembly,  devoted  a  part  of  their 
sessions  to  review  and  examine  the  state  of  the  presbyteries  and  churches  under 
their  care,  do  report  to  the  next  General  Assembly : 

1.  That  the  synod  see  no  ground  for  the  charge  of  delinquency  in  relation  to 
the  permission  alleged  in  the  first  specification.  The  synod  would  remark,  that 
previously  to  the  resolution  of  the  Assembly  on  this  subject  in  1828,  it  is  beheved 
that  a  difference  of  practice  prevailed  in  our  presbyteries,  in  the  reception  of  mem- 
bers from  corresponding  churches;  (as  has  been  common  in  other  presbyteries  in 


35 

different  parts  of  the  country,)  without  any  formal  profession  of  adopting  the  Con- 
fession of  Faith  of  the  Presbyterian  Church.  But  since  the  passage  of  that  resolu- 
tion by  the  Assembly,  the  synod  believe  that  no  such  practice  has  obtained  in  any 
of  our  presbyteries.  In  regard  to  the  allegation  respecting  persons  licensed  and 
ordained  by  our  presbyteries,  without  receiving  and  adopting  the  Confession  of 
Faith,  the  synod  have  no  knowledge  or  belief  of  the  prevalence  of  any  such  prac- 
tice in  any  of  our  presbyteries. 

2.  That  in  relation  to  the  remaining  allegation,  viz.  on  the  subject  of  ruling 
elders,  the  synod  do  not  discover  any  reason  for  the  charge  of  having  violated  the 
constitution  of  the  church,  inasmuch  as  that  constitution  does  not  make  the  elder- 
ship essential  to  the  existence  of  a  church,  and  as  the  number  of  persons  in  many 
churches  is  too  small  to  admit  the  election  of  suitable  persons  to  fill  that  office,  and 
where  this  is  not  the  case,  the  fact  of  their  being  Congregationalists  mingled  with 
Presbyterians  in  many  churches,  is  a  sufficient  reason  for  the  non-existence  of  the 
eldership,  according  to  the  plan  of  agreement  between  the  General  Assembly  and 
the  General  Association  of  Connecticut;  from  the  spiritof  which,  the  synod  believe, 
that  none  of  our  presbyteries  liave  departed. 

However,  with  regard  to  the  charge  of  tlie  presbyteries   allowing  the  office 
of  ruling  elder  to  go  into  disuse,  the  synod  would  say,  that  during  the  last  year, 
there  have  been  more  ruling  elders  elected  and  ordained,  in  the  churches  con- 
nected with  our  presbyteries,  than  during  any  three  or  four  years  previously. 
By  order  of  the  Synod  of  the  Western  Reserve, 

Attest,  Wm.  Hanford, 

Stated  Clerk. 

The  report  of  the  committee  to  examine  the  recoi'ds  of  the  Synod  of  the 
Western  Reserve,  which  was  laid  on  the  table,  was  taken  up,  and  adopted,  and  is 
as  follows,  viz.  That  the  records  be  approved,  with  the  exception  of  the  sentiment 
on  p.  154,  viz.  that  the  eldership  is  not  essential  to  the  existence  of  the  Presbyte- 
rian Church.  In  the  opinion  of  the  committee,  the  Synod  advanced  a  sentiment, 
that  contravenes  the  principles  recognized  in  our  F'orm  of  Government,  Chap.  II, 
sec.  4.     Chap.  111.  sec.  5.     Chap.  V.     Chap.  IX.  sec.  1,  2. 

Funds  acknowledged  from  the  excinded  presbyteries.  (Id.  517  to 
5G8.) 

1834.  The  excinded  presbyteries  vote  on  a  change  in  the  con- 
stitution. (Vol.  7,  p.  13.)  The  Assembly  send  an  appeal  against 
a  decision  of  the  Presbytery  of  Otsego  to  the  Synod  of  Utica,  to 
be  judicially  settled  by  them.  (p.  17.)     Also  another  case  on  p.  19. 

The  Assembly  entertain  a  petition  from  the  Synod  of  Western 
Reserve,  and  at  their  request  make  a  new  Synod,  viz.  "  the  Synod 
of  Michigan,"  p.  22.  The  General  Assembly  set  off  the  Presbytery 
of  Angelica,  from  the  Synod  of  Geneva  to  the  Synod  of  Genessee, 
p.  27.  The  Assembly  approve  of  the  records  of  the  Synod  of 
Western  Reserve,  p.  28.  The  General  Assembly,  at  the  request 
of  the  Synod  of  Albany,  put  the  congregation  of  Stratford  into  the 
Synod  of  Utica,  p.  38.  The  Assembly  appoint  committees  in  the 
excinded  synods,  to  superintend  the  publication  of  the  constitu- 
tion, pp.  40,  41.  Funds  reported  from  excinded  presbyteries,  Id.  82 
to  139. 

1835.  The  Assembly  approve  the  records  of  the  Synod  of  Geneva, 
with  some  slight  and  unimportant  exceptions,  vol.  7,  p.  17.  The 
records  of  Utica  and  Geneva,  p.  18,  19.  The  Assembly  state  that 
it  is  no  longer  desirable  that  churches  should  he  formed  on  Plan  of 
Union,  p.  29. 

The  Assembly  consider  an  appeal  from  the  Synod  of  Utica,  p.  30. 
The  records  of  the  Synod  of  the  Western  Reserve  were  approv- 
ed, p.  32. 


36 

1836.  The  Rev.  Josiah  Hopkins,  of  Cayuga  Presbytery,  was 
appointed  a  delegate  to  the  Association  of  New  Hanapshire. 

The  Assembly  approve  the  records  of  the  Synods  of  Uiica, 
Western  Reserve,  and  Genessee,  p.  263. 

The  excinded  presbyteries  vote  on  a  proposed  alteration  as  to 
the  time  of  studying  for  the  ministry,  to  change  the  term  to  three 
years,  p.  276. 

1837.  Assembly  acknowledges  the  receipt  of  funds  from  the 
excinded  Presbyteries.  Minutes  from  page  527  to  544;  and  from 
572  to  576. 

The  next  evidence  offered  by  the  plaintiffs,  was  Chapters  IV. 
and  V.  of  Form  of  Discipline,  to  show  how  carefully  the  constitu- 
tion of  the  church  guards  the  rights  and  character  of  its  mem- 
bers. 

chap.  IV.  Of  Adual  Process.  Sect.  1.  When  all  other  means  of  removing 
an  offence  have  failed,  the  judicatory  to  which  cognizance  of  it  properly  belongs, 
shall  judicially  take  it  into  consideration. 

2.  There  are  two  modes  in  which  an  offence  may  be  brought  before  a  judica- 
tory: either  by  an  individual  or  individuals,  who  appear  as  accusers,  and  undertake 
to  substantiate  the  charge;  or  by  common  fame. 

3.  In  the  former  case,  process  must  be  pursued  in  the  name  of  the  accuser  or 
accusers.  In  the  latter,  there  is  no  need  of  naming  any  person  as  the  accuser. 
Common  fame  is  the  accuser.  Yet  a  general  rumour  may  be  raised  by  the  rashness, 
censoriousness,  or  malice  of  one  or  more  individuals.  When  this  appears  to  have 
been  the  case,  such  individuals  ought  to  be  censured,  in  proportion  to  the  degree 
of  criminality  which  appears  attached  to  their  conduct. 

4.  Great  caution  ought  to  be  exercised  in  receiving  accusations  from  any  per- 
son who  is  known  to  indulge  a  malignant  spirit  towards  the  accused;  who  is  not  of 
good  character;  who  is  himself  under  censure  or  process;  who  is  deeply  interested, 
in  any  respect,  in  the  conviction  of  the  accused;  or  who  is  known  to  be  litigious, 
rash,  or  highly  imprudent. 

5.  When  a  judicatory  enters  on  the  consideration  of  a  crime  or  crimes  alleged, 
no  more  shall  be»done,  at  the  first  meeting,  unless'  by  consent  of  parties,  than  to 
give  the  accused  a  copy  of  each  charge,  with  the  names  of  the  witnesses  to  support 
it;  and  to  cite  all  concerned  to  appear  at  the  next  meeting  of  the  judicatory,  to 
have  the  matter  fully  heard  and  decided.  Notice  shall  be  given  to  the  parties  con- 
cerned, at  least  ten  days  previously  to  the  meeting  of  the  judicatory. 

6.  The  citations  shall  be  issued  and  signed  by  the  moderator  or  clerk,  by  order, 
and  in  the  name  of  the  judicatory.  He  shall  also  furnish  citations  for  such  wit- 
nesses as  the  accused  shall  nominate,  to  appear  on  his  behalf. 

7.  Although  it  is  required  that  the  accused  be  informed  of  the  names  of  all  the 
witnesses  who  are  to  be  adduced  against  him,  at  least  ten  days  before  the  time  of 
trial,  (unless  he  consent  to  wave  the  right,  and  proceed  immediately,)  it  is  not 
necessary  that  he,  on  his  part,  give  a  similar  notice  to  the  judicatory  of  all  the  wit- 
nesses intended  to  be  adduced  by  him  for  his  exculpation. 

8.  In  exhibiting  charges,  the  times,  places,  and  circumstances  should,  if  pos- 
sible, be  ascertained  and  stated,  that  the  accused  may  have  an  opportunity  to  prove 
an  alibi,  or  to  extenuate  or  alleviate  his  offence. 

9.  The  judicatory,  in  many  cases,  may  find  it  more  for  edification,  to  send  some 
members  to  converse,  in  a  private  manner,  with  the  accused  person;  and  if  he  con- 
fess guilt,  to  endeavour  to  bring  him  to  repentance,  than  to  proceed  immediately 
to  citation. 

10.  When  an  accused  person,  or  a  witness,  refuses  to  obey  the  citation,  he  shall 
be  cited  a  second  time;  and  if  he  still  continue  to  refuse,  he  shall  be  excluded  from 
the  communion  of  the  church,  for  his  contumacy,  until  he  repent. 

11.  Although,  on  the  first  citation,  the  person  cited  shall  declare  in  writing,  or  oth- 
erwise, his  fixed  determination  not  to  obey  it;  this  declaration  shall,  in  no  case,  in- 
duce the  judicatory  to  deviate  from  the  regular  course  prescribed  for  citations. 
They  shall  proceed  as  if  no  such  declaration  had  been  made.  The  person  cited 
may  afterwards  alter  his  mind. 


•  37 

12.  The  time  which  must  elapse  between  Wxejird  citation  of  an  accused  person, 
or  a  witness,  and  the  meeting-  of  the  judicatory  at  which  he  is  to  appear,  is  at  least 
ten  days.  But  the  time  alloted  for  his  appearance  in  the  subsequent  citation  is  left 
to  the  discretion  of  ti\e  judicatory;  provided  always,  however,  that  it  be  not  less 
than  is  quite  sufficient  for  a  seasonable  and  convenient  compliance  witii  the  cita- 
tion. 

13.  The  second  citation  ought  always  to  be  accompanied  with  a  notice,  that  if 
the  person  cited  do  not  appear  at  the  time  appointed,  the  j  udicatory,  besides  cen- 
suring- him  for  his  contumacy,  will,  after  assig-ning  some  person  to  his  defence, 
proceed  to  take  the  testimony  in  his  case,  as  if  he  were  present. 

14.  Judicatories  before  proceeding-  to  trial,  ought  to  ascertain  that  their  citations 
have  been  duly  served  on  the  persons  for  whom  they  were  intended,  and  especially 
before  they  proceed  to  ultimate  measures  for  contumacy. 

15.  The  trial  shall  be  fair  and  impartial.  The  witnesses  shall  be  examined  in  the 
presence  of  the  accused;  or,  at  least,  after  he  shall  have  received  due  citation  to 
attend;  and  he  shall  be  permitted  to  ask  any  questions  tending  to  his  own  excul- 
pation. 

16.  The  judgment  shall  be  regularly  entered  on  the  records  of  the  judicatory:  and 
the  pai-ties  shall  be  allowed  copies  of  the  whole  proceedings,  at  their  own  expense, 
if  they  demand  them.  And  in  case  of  references  or  appeals,  the  judicatory  refer- 
ring, or  appealed  from,  shall  send  authentic  copies  of  the  whole  process  to  the 
higher  judicatory. 

17.  The  person  found  guilty  shall  be  admonished  or  rebuked,  or  excluded  from 
church  privileges,  as  the  case  shall  appear  to  deserve,  until  he  give  satisfactory 
evidence  of  repentance. 

18.  As  cases  may  arise  in  which  many  days,  or  even  weeks,  may  intervene  be- 
fore it  is  practicable  to  commence  process  against  an  accused  church  member,  the 
session  may,  in  such  cases,  and  ought,  if  they  think  the  edification  of  the  church 
requires  it,  to  prevent  the  accused  person  from  approaching  the  Lord's  table 
until  the  charge  against  him  can  be  examined. 

19.  The  sentence  shall  be  published  only  in  the  church  or  churches  which  have 
been  offended.  Or,  if  the  offence  be  of  small  importance,  and  such  as  it  shall  ap- 
pear most  for  edification  not  to  publish,  the  sentence  may  pass  only  in  the  judi- 
catory. 

20.  Such  gross  offenders  as  will  not  be  reclaimed  by  the  private  or  pubhc  admo- 
nitions of  the  church,  are  to  be  cut  off  from  its  communion,  agreeably  to  our  Lord's 
direction,  Matt,  xviii.  17.  And  the  apostolical  injunction  respecting  the  incestuous 
person.     1  Cor.  v.  1 — 5. 

21.  No  professional  counsel  shall  be  permitted  to  appear  and  plead  in  cases  of 
process  in  any  of  our  ecclesiastical  courts.  But  if  any  accused  person  feel  unable 
to  represent  and  plead  his  own  cause  to  advantage,  he  may  request  any  minister  or 
elder,  belonging  to  the  judicatory  before  which  he  appears,  to  prepare  and  exhibit 
his  cause  as  he  may  judge  proper.  But  the  minister  or  elder  so  engaged,  shall  not 
be  allowed,  after  pleading  the  cause  of  the  accused,  to  sit  in  judgment  as  a  mem- 
ber of  the  judicatory. 

22.  Questions  of  order,  which  arise  in  the  course  of  process,  shall  be  decided  by 
the  moderator.  If  an  appeal  is  made  from  the  chair,  the  question  on  the  appeal 
shall  be  taken  without  debate. 

23.  In  recording  the  proceedings,  in  cases  of  judicial  process,  the  reasons  for 
all  decisions,  except  on  questions  of  order,  shall  be  recorded  at  length  ;  that  the 
record  may  exhibit  every  thing  wliicli  had  an  influence  on  the  judgment  of  the 
court.  And  nothing  but  what  is  contained  in  the  record,  may  be  taken  into  con- 
sideration in  reviewuig  the  proceedings  in  a  superior  court. 

Chap.  v.  Of  Process  against  a  Bishop  or  Minister.  1.  As  the  honour  and  suc- 
cess of  the  gospel  depend,  in  a  great  measure,  on  the  character  of  its  ministers, 
each  presbytery  ought,  with  the  greatest  care  and  impartiality,  to  watch  over  the 
personal  and  professional  conduct  of  all  its  members.  But  as,  on  the  one  hand,  no 
minister  ought,  on  account  of  his  office,  to  be  screened  from  the  hand  of  justice, 
nor  his  offences  to  be  slightly  censured;  so  neither  ought  scandalous  charges  to  be 
received  against  him,  by  any  j  udicatory,  on  slight  grounds. 

2.  Process  against  a  gospel  minister  shall  always  be  entered  before  the  presby- 
tery of  which  he  is  a  member.  And  the  same  candour,  caution,  and  general  me- 
thod, substituting  only  the  presbytery  for  the  session,  are  to  be  observed  in  inves- 
tigating charges  against  him,  as  are  prescribed  in  the  case  of  private  members. 

4 


38 

3.  If  it  be  found  that  the  facts  with  which  a  minister  stands  charged,  happened 
without  the  bounds  of  his  own  presbytery,  that  presbytery  shall  send  notice  to  the 
presbytery  within  whose  bounds  they  did  happen:  and  desire  them  either  (if  within 
convenient  distance,)  to  cite  the  witnesses  to  appear  at  the  place  of  trial;  or,  (if 
the  distance  be  so  great  as  to  render  that  inconvenient,)  to  take  the  examination 
themselves,  and  transmit  an  authentic  record  of  their  testimony:  always  giving  due 
notice  to  the  accused  person,  of  the  time  and  place  of  such  examination. 

4-  Neveilheless,  in  case  of  a  minister  being  supposed  to  be  guilty  of  a  crime,  or 
crimes,  at  such  a  distance  from  his  usual  place  of  residence,  as  that  the  offence  is 
not  likely  to  become  otherwise  known  to  the  presbytery  to  which  he  belongs;  it 
shall,  in  such  case,  be  the  duty  of  the  presbytery  within  whose  bounds  the  facts 
shall  have  happened,  after  satisfying  themselves  that  there  is  probable  ground  of 
accusation,  to  send  notice  to  the  presbytery  of  which  he  is  a  member,  who  are  to 
proceed  against  him,  and  either  send  and  take  the  testimony  themselves,  by  a  com- 
mission of  their  own  body,  or  request  the  other  presbytery  to  take  it  for  them,  and 
transmit  the  same  properly  authenticated. 

5.  Process  against  a  gospel  minister  shall  not  be  commenced,  unless  some  per- 
son or  persons,  imdertake  to  make  out  the  charge:  or  unless  common  fame  so 
loudly  proclaims  the  scandal,  that  the  presbytery  find  it  necessary,  for  the  honour 
of  religion,  to  investigate  the  charge. 

6.  As  the  success  of  the  gospel  greatly  depends  upon  the  exemplary  character 
of  its  ministers,  their  soundness  in  the  faith,  and  holy  conversation;  and  as  it  is  the 
duty  of  all  Christians  to  be  very  cautious  in  taking  up  an  ill  report  of  any  man,  but 
especially  of  a  minister  of  the  gospel;  therefore  if  any  man  knows  a  minister  to  be 
guilty  of  a  private,  censurable  fault,  he  should  warn  him  in  private.  But  if  the 
guilty  person  persist  in  his  fault,  or  it  become  public,  he  who  knows  it,  should 
apply  to  some  other  bishop  of  the  presbytery  for  his  advice  in  the  case. 

7.  The  prosecutor  of  a  minister  shall  be  previously  warned,  that  if  he  fail  to 
prove  the  charges,  he  must  himself  be  censured  as  a  slanderer  of  the  gospel  minis- 
try, in  proportion  to  the  malignancy  or  rashness  that  shall  appear  in  the  prosecu- 
tion. 

8.  When  complaint  is  laid  before  the  presbytery,  it  must  be  reduced  to  writing; 
and  nothing  further  is  to  be  done  at  the  first  meeting,  (unless  by  consent  of  par- 
ties,) than  giving  the  minister  a  full  copy  of  the  charges,  with  the  names  of  the 
witnesses  annexed;  and  citing  all  parties,  and  their  witnesses,  to  appear  and  be 
heard  at  the  next  meeting ;  whicli  meeting  shall  not  be  sooner  than  ten  days  after 
such  citation. 

9.  When  a  member  of  a  church  judicatory  is  under  process,  it  shall  be  discre- 
tionary with  the  judicatory  whether  his  privileges  of  deliberating  and  voting,  as  a 
member,  in  other  matters,  shall  be  suspended  until  the  process  is  finally  issued,  or 
not. 

10.  At  the  next  meeting  of  the  presbytery,  the  charges  shall  be  read  to  him,  and 
he  shall  be  called  upon  to  say  whether  he  is  guilty  or  not.  If  he  confess,  and  the 
matter  be  base  and  flagitious;  such  as  drunkenness,  uncleanness,  or  crimes  of  a 
higher  nature,  however  penitent  he  may  appear,  to  the  satisfaction  of  all,  the  pres- 
bytery must,  without  delay,  suspend  him  from  the  exercise  of  his  office,  or  depose 
him  from  the  ministry;  and,  if  the  way  be  clear  for  the  purpose,  appoint  him  a  due 
time  to  confess  publicly  before  the  congregation  offended,  and  to  profess  liis  peni- 
tence. 

11.  If  a  minister  accused  of  atrocious  crimes,  being  twice  duly  cited,  shall  refuse 
to  attend  the  presbytery,  he  shall  be  immediately  suspended.  And  if,  after  another 
citation,  he  still  refuse  to  attend,  he  shall  be  deposed  as  contumacious. 

12.  If  the  minister,  when  he  appears,  will  not  confess ;  but  denies  the  facts 
alleged  against  him,  if,  on  hearing  the  witnesses,  the  charges  appear  important, 
and  well  supported,  the  presbytery  must,  nevertheless,  censure  him;  and  admonish, 
suspend,  or  depose  him,  according  to  the  nature  of  the  offence. 

13.  Heresy  and  schism  may  be  of  sucli  a  nature  as  to  inter  deposition ;  but  errors 
ought  to  be  carefully  considered ;  whether  they  strike  at  the  vitals  of  religion,  and 
are  industriously  spread;  or,  whether  they  arise  from  the  weakness  of  the  human 
imderstanding,  and  are  not  likely  to  do  much  Injury. 

14.  A  minister  under  process  for  heresy  or  schism,  should  be  treated  with  Chris- 
tian and  brotherly  tenderness.  Frequent  conferences  ought  to  be  held  with  him, 
and  proper  admonitions  administered.  For  some  more  dangerous  errors,  how- 
ever, suspension  may  become  necessaiy. 

15.  If  the  presbytery  find,  on  trial,  that  the  matter  complained  of,  amounts  to 


39 

no  more  than  such  acts  of  infirmity  as  may  be  amended,  and  the  people  satisfied ; 
so  that  little  or  nothing  remains  to  hinder  his  usefulness,  they  shall  take  all  prudent 
measures  to  remove  the  offence. 

16.  A  minister  deposed  for  scandalous  conduct,  shall  not  be  restored,  even  on 
the  deepest  sorrow  for  his  sin,  until  after  some  time  of  eminent  and  exemplary, 
humble  and  edifying  conversation,  to  heal  the  wound  made  by  his  scandal.  And 
he  ought  in  no  case  to  be  restored,  until  it  shall  appear,  that  the  sentiments  of  the 
religious  public  are  strongly  in  his  favour,  and  demand  his  restoration. 

17.  As  soon  as  a  minister  is  deposed,  his  congregation  shall  be  declared  vacant. 

The  following  passage  from  the  Form  of  Government  and  extract 
from  the  minutes  of  the  General.  Assembly  of  1822  were  here  read 
by  plaintiffs'  counsel,  to  show  the  powers  of  the  General  Assembly, 
as  they  were  understood  immediately  after  the  adoption  of  the 
amended  constitution  in  1821,  and  that,  in  the  judgment  of  that  body, 
on  an  occasion  when  peculiar  circumstances  had  drawn  together  an 
unusually  large  share  of  the  deliberative  wisdom  of  the  church,  it 
was  utterly  inconsistent  with  the  constitution  for  the  Assembly  to 
attempt  the  exercise  of  its  powers  in  the  excision  of  members,  with- 
out regular  disciplinary  process. 

chap.  XII.  Form  of  Government.  4.  The  General  Assembly  shall  receive  and 
issue  all  appeals  and  references,  which  may  be  regularly  brought  before  them, 
from  the  inferior  judicatories.  They  shall  review  the  records  of  every  synod,  and 
approve  or  censure  them;  they  shall  give  their  advice  and  instruction,  in  all  cases 
submitted  to  them,  in  conformity  with  the  constitution  of  the  church;  and  they  shall 
constitute  the  bond  of  union,  peace,  con-espondence,  and  mutual  confidence  among 
all  our  churches. 

5.  To  the  General  Assembly  also  belongs  the  power  of  deciding  in  all  contro- 
versies respecting  doctrine  and  discipline;  of  reproving,  warning,  or  bearing  tes- 
timony against  error  in  doctrine,  or  immorality  in  practice,  in  any  church,  presby- 
tery, or  synod;  of  erecting  new  synods,  when  it  may  be  judged  necessary;  of 
superintending  the  concerns  of  the  whole  church;  of  corresponding  with  foreign 
churches,  on  such  terms  as  may  be  agreed  upon  by  the  Assembly  and  the  corres- 
ponding body;  of  suppressing  schismatical  contentions  and  disputations;  and,  in 
general  of  recommending  and  attempting  reformation  of  manners,  and  the  promo- 
tion of  charity,  truth,  and  holiness,  through  all  the  churches  under  their  care. 

6.  Before  any  overtures  or  regulations  proposed  by  the  Assembly  to  be  estab- 
lished as  constitutional  rules,  shall  be  obligatory  on  the  churches,  it  shall  be  ne- 
cessary to  transmit  them  to  all  the  presbyteries,  and  to  receive  tiie  returns  of  at 
least  a  majority  of  them,  in  writing,  approving  thereof. 

1822.  Min.  p.  22.  The  committee  to  which  was  referred  a  paper  purporting  to 
be  a  remonstrance  from  John  M.  Rankin  and  others,  who  allege  that  they  are  mem- 
bers of  the  Presbyterian  Church  in  the  United  States,  having  had  the  same  under 
serious  consideration,  submitted  the  following  report,  which  was  adopted,  viz: 

The  General  Assembly  can  never  hesitate,  on  any  proper  occasion,  to  recom- 
mend to  those,  who,  at  both  their  licensure  and  ordination  professed  "sincerely  to 
receive  and  adopt  the  Confession  of  Faith  of  this  Church,  as  containing  the  system 
of  doctrine  taught  in  the  Holy  Scriptures,"  and  to  all  other  members  of  our  church, 
steadfastly  to  adhere  to  that  "form  of  sound  words." 

But  while  the  General  Assembly  is  invested  with  the  power  of  deciding  in  all 
controversies,  respecting  doctrine  and  discipline ;  of  reproving,  warning,  or  bear- 
ing testimony,  against  error  in  doctrine  in  any  church,  presbytery,  or  synod;  or  of 
suppressing  schismatical  contentions  and  disputations,  all  such  matters  ought  to  be 
brought  before  the  Assembly  in  a  regular  and  constitutional  way.  And  it  does  not 
appear  that  the  constitution  ever  designed,  that  the  General  Assembly  should  take 
up  abstract  cases,  and  decide  on  them,  especially  when  the  object  appears  to  be, 
to  bring  those  decisions  to  bear  on  particular  individuals,  not  judicially  before  the 
Assembly.  Neither  does  it  appeal",  that  the  constitution  of  the  church,  intended 
that  any  person  or  persons,  should  have  the  privilege,  of  presenting  for  decision,  re- 
monstrances respecting  points  of  doctrine,  on  the  conduct  of  individuals,  not  brought 


40 

up  from  the  inferior  judicatories,  by  appeal,  reference,  or  complaint;  and  this  es- 
pecially, when  such  remonstrances  contain  no  evidence  whatsoever,  of  the  facts 
alleged,  but  mere  statements,  of  the  truth  or  justness  of  which,  the  Assembly  have 
no  means  of  judging",  inasmuch  as  a  contrary  course,  would  allow  of  counter  and 
contradictory  remonstrances,  without  end. 

Wherefore,  on  motion  resolved,  that  the  committee  be  discharged  from  the  fur- 
ther consideration  of  this  remonstrance;  and  the  committee  were  accordingly  dis- 
charged. 

The  Court  now  adjourned. 


Wednesday,  March  6th. 

The  plaintiffs  offered  in  evidence  the  minutes  of  the  General 
Assembly  of  1837,  and  called  the  attention  of  the  Court  to  the  sta- 
tistical table  of  that  year,  (pages  521 — 523,)  by  which  it  appears 
that  presbyteries  not  afllected  by  the  excinding  acts  of  1837  have 
several  ministers  who  are  pastors  of  Congregational  churches.  In 
the  Presbyteries  of  Londonderry  and  Newburyport,  belonging  to 
the  Synod  of  Albany,  there  were  forty-one  ministers  reported  to  the 
General  Assembly  of  1837;  sixteen  of  whom  were  pastors  of  Con- 
gregational churches,  and  only  fourteen  pastors  of  Presbyterian 
churches;  while  by  other  parts  of  the  table  it  appeared  that  there 
were  no  cases  of  that  character  reported  by  any  of  the  presbyteries 
belonging  to  the  four  excinded  synods.  Next  was  read  from  the  same 
table  (page  527)  the  amount  of  contributions  to  the  funds  of  the 
church  made  by  presbyteries  within  the  four  synods,  for  the  year 
then  reported  to  the  General  Assembly.  Among  the  presbyteries 
were 

The  Presbytery  of  St.  Lawrence,  which  contributed  in  that 
year  S953  33 

The  Presbytery  of  Oswego,  "  "         662  07 

"  Geneva,  "  "       7729  95 

"  Rochester,  "  "    15,750  50 

Mr.  Randall,  of  counsel  for  the  relators,  then  said  he  would  read 
from  the  minutes  of  the  General  Assembly,  (page  520,)  the  official 
statement,  made  by  order  of  the  Assembly,  of  the  synods  and  pres- 
byteries recognized  as  in  its  connexion  at  the  opening  of  the  As- 
sembly. 

Mr.  Huhhell,  of  counsel  for  the  respondents,  objected  to  this 
being  admitted  as  evidence,  on  the  ground,  that  the  admission 
would  involve  other  questions  than  those  stated  in  the  pleadings — 
that  the  testimony  was  irrelevant  to  the  issue.  Why,  (he  asked,) 
do  the  relators  desire  to  introduce  the  proceedings  of  the  General 
Assembly  of  1837?  Is  it  their  purpose  to  show  that  the  General 
Assembly  of  1837  dismembered,  destroyed,  annihilated  itself?  If 
they  propose  any  thing  other  than  this,  what  effect  can  the  pro- 
ceedings of  the  General  Assembly  of  1837  have  on  those  of  the 
General  Assembly  of  1838?  But  the  pleadings  preclude  the  ad- 
mission of  evidence  for  this  purpose. 

The  General  Assembly  of  1838  derived  its  very  existence  from 
the  last  act  of  the  Assembly  of  1837.  The  very  appearance  in 
this  suit,  of  the  relators,  as  Trustees,  is,  on  their  part,  an  acknow- 
ledgment that  the  General  Assembly  of  1837  did  not  dismember 


41 

itself;  for  they  can  claim  only  under  the  appointment  of  an  Assem- 
bly as  the  successor  of  that  of  1837.  Their  object  must  be,  and 
by  their  own  admission  in  their  opening,  it  is,  to  prove  that  the  offi- 
cers of  the  General  Assembly  of  1838  committed  error,  that  they 
defeated,  or  endeavoured  to  defeat,  the  constitutional  organization 
of  the  General  Assembly,  by  their  refusal  to  admit  certain  claim- 
ants to  their  seats.  If  this  is  so — if  they  can  prove  such  a  rejection 
as  they  allege,  and  that  it  prevented  the  organization  of  the  As- 
sembly in  the  usual  manner — then  the  relators  have  succeeded  in 
that  part  of  their  case. 

Now  we,  as  counsel  for  the  respondents,  deny  that  any  such  re- 
jection was  ever  made  by  the  General  Assembly  of  1838,  or  by  its 
officers.  We  deny  that  they  ever  committed  themselves  on  that 
subject;  and  we  challenge  the  proof.  But  if  it  were  so,  are  our 
opponents  to  be  allowed  to  bring  in  the  proceedings  of  the  previous 
General  Assembly,  to  show  our  reasons,  either  good  or  bad,  for 
doing  it?  If  any  such  reasons  exist,  it  is  our  business  to  exhibit 
them,  not  theirs.  They  have  no  right  to  come  into  our  camp  to 
find  reasons  for  our  conduct. 

The  General  Assembly  of  1838  was  the  sole  judge  of  the  quali- 
fications of  its  own  members.  In  this  respect,  it  was  entirely  in- 
dependent of  the  General  Assembly  of  1837.  It  was  composed  of 
different  members,  or  if  in  part  the  same,  yet  a  new  election  had 
intervened,  and  it  might  have  been  composed  entirely  of  different 
members  from  those  of  the  former  year.  The  same  Moderator 
did  not  preside  in  both  of  those  Assemblies :  for  the  old  Moderator 
continues  in  office  no  longer  than  is  necessary  to  constitute  the 
new  Assembly,  when  a  new  Moderator  is  chosen. 

The  Clerks,  whose  business  it  was  to  judge  of  the  validity  of 
commissions,  rejected  those  of  certain  commissioners.  An  attempt 
was  made  to  bring  the  matter  before  the  General  Assembly  for 
consideration.  The  Moderator  declared  the  motion  for  that  pur- 
pose, out  of  order.  An  appeal  was  taken  from  his  decision,  and 
he  decided  the  appeal  to  be  out  of  order  also.  Now  the  relators 
may  claim  that  the  General  Assembly  dismembered  and  destroyed 
itself  by  this  act:  or  that,  on  an  appeal  being  made  to  the  house,  it, 
by  a  unanimous  vote,  removed  its  officers,  on  account  of  their 
misconduct.  This  is  their  case,  if  they  can  make  it  out.  If  they 
do  so,  we  may  need  the  acts  of  1837  for  our  justification;  but  let 
them  not  anticipate  our  defence. 

Suppose  it  were  even  true,  that  the  General  Assembly  of  1837 
committed  acts  of  injustice,  what  effect  can  these  acts  have  to 
impart  an  evil  character  to  the  proceedings  of  the  Assembly  of 
1838?  "  Suppose  they  take  the  ground,  that  the  action  commenced 
by  the  Moderator  and  Clerks  for  organizing  the  Assembly  of  1838, 
was  irregular;  and  that  every  thing  done  in  this  process,  after  the 
rejection  of  certain  of  the  commissioners  by  the  Clerks,  was  utterly 
null  and  void. 

Must  we  proceed  in  the  way  prescribed  by  them,  when  we  at- 
tempt to  justify  our  Moderator  and  Clerks?  We  intend  to  prove 
that  those  officers  acted  rightly ;  and  that  the  party  of  the  relators 

4* 


42 

becoming  offended  at  the  inferior  and  primary  tribunal,  never  pre- 
sented  their  case  regularly  to  the  General  Assembly,  and  conse- 
quently were  not  rejected  by  that  body. 

The  plaintiffs  assert  that  the  error  of  the  Clerks  and  Moderator 
constituted  them  the  true  General  Assembly,  and  also  dismem- 
bered and  annihilated  our  Assembly.  But  now  they  propose  to  go 
much  further.  They  propose  to  enter  into  our  motives:  they  pro- 
pose to  show  that  we  were  (as  they  have  charged  upon  us)  actuated 
by  bad  motives. 

Judge  Rogers  said  the  evidence  appeared  to  him  to  be  precisely 
of  the  same  character  with  that  already  admitted  by  the  court. 

Mr.  Hubbell  resumed.  For  the  purpose  for  which  we  understood 
the  other  to  be  admitted,  we  have  no  objection  to  the  admission  of 
this.  It  is  doubtless  the  right,  the  duty  of  the  opposite  counsel  to 
build  up  a  General  Assembly  if  they  can.  But  is  this  to  be  done 
by  showing  that  these  bodies  have  been  admitted  and  recognized 
as  parts  of  the  Presbyterian  church?  That  point  is  conceded. 
We  have  no  contest  on  that  subject :  but  whether  they  were  con- 
stitutionally recognized  by  the  General  Assembly  or  not,  is  quite 
another  thing.  At  any  rate,  they  cannot  be  allowed  to  show  that 
our  proceedings  in  1837,  were  a  poor  reason  for  our  conduct  in 
1838;  or  that  our  defence  is  a  poor  defence,  until  we  have  given 
that  reason,  or  made  that  defence.  We  have  a  right  to  be  the 
masters  of  our  own  defence. 

Mr.  IngersoU,  also  for  the  respondents,  said  he  would  like  to  know 
the  objects  for  which  this  species  of  evidence  was  offered.  It  might 
have  a  double  object.  If  the  testimony  were  offered  simply  to 
prove  the  recognition  of  the  four  synods,  and  the  inferior  judica- 
tories belonging  to  them,  he  would  not  object  to  it,  inasmuch  as  it 
was  merely  irrelevant.  But  if  offered  with  a  view  to  prove  the  re- 
jection of  those  synods,  it  was  wholly  inadmissible. 

The  Court  inquired  of  Mr.  Randall  what  was  the  object  of  the 
evidence. 

M7\  Randall  repWed :  May  it  please  your  honour,  our  object  is 
to  show  what  was  the  state  of  the  Presbyterian  church  at  the  meet- 
ing of  the  General  Assembly  of  1837.  We  desire  to  show  that  the 
four  excinded  synods  were  then  in  good  standing,  as  a  part  of  the 
Presbyterian  church  in  the  United  States,  as  the  documents  already 
introduced  show  that  the  presbyteries  belonging  to  those  very 
synods  participated  in  the  adoption  of  the  constitution  of  1820. 
We  then  intend  to  follow  this  up,  by  showing  the  act  of  dismem- 
berment of  the  General  Assembly  in  1838,  begun  by  the  Clerks, 
and  carried  out  by  the  Moderator,  by  which  they  defeated  their 
own  attempt  at  an  unjust  and  partial  organization,  and  enabled  us 
to  carry  out  the  regular  and  lawful  organization,  as  the  true  General 
Assembly  of  the  Presbyterian  church.  We  intend  further  to  show 
that  these  measures  of  the  Clerks  and  the  Moderator  originated  in 
the  acts  of  excision  of  the  General  Assembly  of  1837,  and  were 
an  attempt  to  carry  out  those  acts,  which  were  null  and  void.  The 
document  offered  is  part  of  a  consecutive  chain  of  evidence,  the 
several  hnks  of  which  are  independent  of  each  other,  except  as  to 


43 

their  order.  We  expect  to  prove  them  all — but  one  link  at  a 
time. 

The  Court  intimated  to  Mr.  Hubbell  that  he  might  proceed. 

3/?-.  Hubbell  then  argued,  that,  as  the  respondents  do  not  set  up 
the  pretence  that  the  act  of  the  Clerks  refusing  lo  receive  the  com- 
missions of  the  claimants  from  the  detruded  synods,  was  a  mistake, 
the  relators  could  not  bring  evidence  to  prove  that  it  was  not  a 
mistake ;  that  they  were  precluded  by  the  rules  of  evidence,  from 
going  into  an  inquiry  as  to  the  designs  of  the  adverse  party.  If 
the  relators  (he  said)  can  prove  their  positions,  before  adverted  to, 
respecting  the  incipient  measures  for  organizing  the  Assembly  of 
1838,  then  they  have  laid  the  ios/sof  their  superstructure  ;  but  they 
must  not  be  allowed  to  anticipate  our  defence  against  their  allega- 
tions. If  the  proceedings  of  1837  dismembered  and  destroyed  the 
General  Assembly,  then  our  trustees,  previously  elected,  are  entitled 
to  hold.  If  this  were  alleged,  it  would  defeat  the  issue  chosen  by  the 
relators.  It  would  put  them  immediately  out  of  Court.  They  there- 
fore admit  that  the  trustees,  which  were  elected  in  1837,  were 
legally  chosen,  notwithstanding  they  were  elected  after  the  acts  of 
excision,  of  which  they  complain. 

If,  then,  on  the  other  hand,  as  appears  to  be  admitted  by  them, 
no  dismemberment  of  the  General  Assembly  was  effected,  what 
can  be  the  influence  of  the  evidence  offered  by  the  counsel  1  The 
General  Assembly  of  1838  was  the  judge  of  the  qualifications  of 
its  own  members;  and  in  this  respect  was  entirely  an  independent 
body.  The  rejection  of  commissioners  by  the  Clerks  in  1838,  was 
not,  and  could  not  be  influenced  by  the  proceedings  of  the  General 
Assembly  of  1837,  except  so  far  as  they  furnish  us  with  an  excuse, 
or  a  reason,  if  you  please,  should  we  choose  to  employ  it,  tor  our 
defence. 

The  relators  themselves  contend  that  the  proceedings  of  the 
General  Assembly  of  1838  ought  not  to  have  been  influenced  by 
what  took  place  in  1837.  They  say  that  the  acts  of  1837  were  null 
and  void,  and  that  therefore  the  rejection  of  certain  commissions 
by  the  Clerks,  in  1838,  was  a  bad  procedure;  and  shall  we  be  de- 
nied the  advantage  of  these  admissions,  by  their  anticipating  our 
defence?  We  will  show^  the  reason  for  the  rejection  of  those  com- 
missions, in  our  own  time,  and  do  not  intend  to  allow  our  case  to 
be  anticipated  and  mangled  by  our  opponents. 

Judge  Rogers  said  that  he  did  not  like,  at  this  stage  of  the  pro- 
ceedings, to  decide  the  question,  whether  the  testimony  now  ofl'ered 
involved  the  merits  of  the  case  or  not.  He  did  not  see  how  the 
defendants  could  do  without  it.  It  might  be  admitted  now,  unless 
they  had  something  further  to  object  to  its  character;  and  its  bear- 
ing could  be  decided  afterwards. 

Mr.  Ingersoll  said  he  should  like  to  say  one  word  more,  perhaps 
half  a  dozen,  in  explanation  ;  whether  the  testimony  were  admitted 
or  not. 

If  it  resembled  the  testimony  offered  by  reading  the  minutes  yes- 
terday, was  intended  to  prove  the  same  thing,  it  was  merely  irrele- 


44 

vant;  but  if  it  proceeded  one  step  further,  it  was  decidedly  objec- 
tionable, inasmuch  as  it  presented  a  false — a  dangerous  issue,  and 
might  be  highly  injurious  and  fatal  to  the  defendants.  There  were 
two  courses  which  the  New  School  party  might  have  taken. 
They  might  have  applied  for  a  mandamus,  and  this  court  would, 
at  once,  have  reinstated  them  in  the  full  enjoyment  of  their  rights, 
if  they  had  been  unjustly  deprived  of  any  right.  If,  as  they  al- 
lege, one  hundred  and  eighty  thousand  worshippers  were,  without 
form  or  reason,  excluded  from  their  connexion  with  the  Presbyte- 
rian church,  they  could  have  brought  an  action,  such  as  was  insti- 
tuted against  Mr.  Breckinridge,  Dr.  Elliott,  and  Dr.  Plumer,  in 
May  last,  and  this  court  would  have  restored  them.  They  had 
not,  however,  chosen  to  take  that  course  as  a  remedy  for  their 
grievances.  They  chose  to  try  a  bolder  course.  They  chose  to 
meet  in  Ranstead  court  and  offer  certain  motions  and  resolutions, 
and  at  a  certain  period  of  their  proceedings,  to  resolve  the  body 
into  its  original  elements.  It  was  a  bold  and  intrepid  measure, 
surely.  But  they  did  not  succeed,  for  having  reached  a  certain 
point  of  these  proceedings,  and  meeting  some  unexpected  obstacles, 
they  openly  seceded  from  the  body.  They  withdrew  from  the 
General  Assembly,  and  created  another  Assembly,  and  it  is  for 
them  to  prove  that  theirs  is  the  true  and  lawful  General  Assembly. 

The  question  now  at  issue  is,  did  they  secede  in  a  proper  man- 
ner ?  Under  this  writ  of  quo  warranto,  the  remedy  of  their  own 
selection,  it  is  for  them  to  show  their  title. 

They  say  that  we  acted  irregularly  in  the  General  Assembly  of 
1838 — and  therefore  ask  the  judgment  of  this  court  in  ouster:  but 
the  General  Assembly  of  1837  was  entirely  dissolved  by  the  very 
terms  of  its  adjournment.  Look  at  what  is  prescribed  in  the 
constitution. 

Form  of  Government,  Chapter  XII.  sect.  8.  Each  session  of  the  Assembly 
shall  be  opened  and  closed  with  prayer.  And  the  whole  business  of  the  Assem- 
bly being  finished,  and  the  vote  taken  for  dissolving  the  present  Assembly, 
the  moderator  shall  say  from  the  chair — "  By  virtue  of  the  authority  delegated  to 
me,  by  the  church,  let  this  General  Assembly  be  dissolved,  and  I  do  hereby  dis- 
solve it,  and  require  another  General  Assembly,  chosen  in  the  same  manner,  to  meet 

at on  the  day  of A.  D. ,"  after  which  he  shall  pray  and 

return  thanks,  and  pronounce  on  those  present,  the  apostolic  benediction. 

The  General  Assembly  of  1837,  then  was  dissolved,  entirely 
extinguished  and  annihilated,  as  though  it  had  never  had  an  ex- 
istence. It  was  not  an  adjournment  of  the  General  Assembly  to 
meet  again,  nor  a  curia  advisare  vult,  as  is  the  practice  of  the 
Supreme  Court  of  this  state.  As  to  the  General  Assembly  of  1837, 
then,  when  it  adjourned  there  was  an  end  of  every  thing.  It  was 
dissolved.  If  any  had  been  unjustly  excluded  from  that  Assembly, 
their  proper  remedy  was  to  apply  for  re-admission  to  the  General 
Assembly  of  1838.  They  should  have  so  applied.  But  instead  of 
doing  so,  they  chose  to  secede,  and  it  is  not  competent  for  them 
now  to  prove  that  the  proceedings  of  the  General  Assembly  of 
1837  were  wrong,  but  they  must  prove  that  their  secession  was 
right,  and  conducted  properly.  We  say  that  they  never  were  ex- 
cluded from  the  General  Assembly  of  1838,  that  they  never  sought 


45 

admission  there  in  a  proper  manner ;  that  they  never  gave  that 
General  Assembly  an  opportunity  to  decide  their  case. 

Judge  Rogers  said  that  the  evidence  appeared  to  be  one  link  in 
connexion  with  the  testimony  which  had  already  been  admitted. 
The  proceedings  of  the  Assembly  of  1837,  were  necessary  to  ex- 
plain the  proceedings  of  1838 ;  and  if  not  necessary  for  the  relators, 
it  would  be  for  the  respondents. 

The  Court  therefore  overruled  the  objection,  and  admitted  the 
minutes  of  1837,  as  evidence  in  the  case. 

The  plaintiffs  then  read  in  evidence,  an  extract  from  the  minutes 
of  1837,  page  520,  viz. 

Synods  and  Presbyteries. 

The  following  summary  account  of  synods  and  presbyteries,  tog-ether  with  the 
statistical  reports  of  presbyteries  in  detail,  present  the  Presbyterian  Church  as  it 
was  at  the  commencement  of  the  sessions  of  the  General  Assembly.  During  these 
sessions,  four  of  these  synods,  with  all  their  respective  presbyteries,  were  declared 
to  be  no  longer  a  part  of  the  Presbyterian  church  in  the  United  States  of  America, 
viz.  the  Synod  of  the  Western  Reserve,  [see  Minutes,  page  440,]  and  the  Synods  of 
Utica,  Geneva  and  Genessee,  [see  Minutes,  page  444,]  and  the  Third  Presbytery  of 
Philadelphia  was  dissolved,  [see  Minutes,  page  472.]  The  Assembly  directed  the 
Stated  Clerk,  having  inserted  a  note  to  this  effect,  to  pubhsh  the  statistics  of  these 
judicatories  for  the  past  year.     [See  Minutes,  page  494.] 

The  General  Assembly  of  1837,  at  the  commencement  of  their  sessions,  bad 
under  their  care  twenty-three  synods,  comprising  one  hundred  and  thirty-five  pres- 
byteries, viz. 

2.  The  Synod  of  Utica,  containing  Mh^five  Presbyteries  of  St.  Lawrence,  Water- 
town,  Oswego,  Oneida,  and  Otsego. 

3.  The  Synod  of  Geneva,  containing  the  nine  Presbyteries  of  Geneva,  Chenango, 
Onondaga,  Cayuga,  Tioga,  Cortland,  Bath,  Delaware,  and  Chemung. 

4.  The  Synod  of  Genessee,  containing  the  si'a;  Presbyteries  of  Genessee,  Ontario, 
Rochester,  Niagara,  Buffalo,  and  Angelica. 

9.  The  Synod  of  the  Western  Reserve,  containing  the  eight  Presbyteries  of 
Grand  River,  Portage,  Huron,  Trumbull,  Cleveland,  Maumee,  Lorain,  and  Medina, 

In  explanation  of  the  document  just  read,  Mr.  Randall  said  he 
would  read  the  following  extract  from  the  same  minutes,  (1837,) 
page  414. 

In  answer  to  a  request  of  the  Stated  Clerk,  for  direction  in  making  out  the 
general  statistical  table,  for  the  current  year,  the  Assembly  ordered  that  he  should 
insert  in  that  table,  the  statistics  in  his  hands  for  the  past  year,  of  those  judicatories 
that  have  been  declared  by  the  General  Assembly  to  be  no  longer  parts  of  the 
Presbyterian  Church,  and  to  insert  a  marginal  note  to  this  effect;  and  that  hereaf- 
ter, those  statistics  shall  not  appear  in  the  general  table  published  by  the  General 
Assembly. 

The  plaintiffs  next  offered  in  evidence,  a  list  of  the  presbyteries 
within  the  bounds  of  the  four  excinded  synods,  with  the  dates  of 
their  erection  by  the  proper  judicatories,  by  which  it  appeared  that 
there  were  connected  with  those  synods,  twenty-eight  presbyteries, 
jive  hundred  and  ninety-nine  churches,  with  five  hundred  and  nine 
ministers,  and  fifty  thousand  four  hundred  and  eighty-nine  commu- 
nicants, as  officially  reported ;  and  by  an  estimate  founded  on  the 
number  of  churches  not  reported,  the  whole  number  of  communi- 
cants is  stated  at  fifty-seven  thousand  seven  hundred  and  twenty- 
four. 

The  list  is  here  subjoined. 


46 


PRESBYTERIES  OF  THE  FOUR  EXCINDED  SYNODS. 


Presbyteries. 

■5 

Cm 

6 

^2; 

lA 

4) 

0  c- 
0  *- 

'V.  S 

0   es     . 
0   C  <U 

9) 

•si 

0  ST 

«M  ^ 

°.t 
0  c 

"1  ■ 

0  C  a; 

How  Constituted. 

Synod  of  Utica. 

Oneida, 

St.  Lawrence, 

Otsego, 

Wactertown, 

Oswego, 

1802 
1818 
1820 or21 
1822 
1823 

43 

8 

8 

10 

11 

36 
10 
16 
22 

24 

5364 
1151 
1971 
1182 
965 

1 

1 

11 

5500 
1200 
2031 
1732 
1325 

Digest,  page  57. 
By  Synod  Albany, 

Do.           do. 

Do.           do. 

Do,           do. 

80 

108 

10,633 

11,788 

Synod  of  Geneva. 

Geneva, 

Onondaga, 

Cayuga, 

Bath, 

Cortland, 

Chenango, 

Tioga, 

Delaware, 

Chemung, 

1805 
1810 
1810 
1817 
1825 
1826 
1829 
1831 
1836 

41 
18 
36 
11 
11 
10 
15 
9 
16 

39 
22 
30 
20 
15 
17 
16 
20 
23 

4690 
2409 
4119 
1010 
1443 
782 
1700 
2550 
1158 

4 
2 
6 
5 
2 
11 
5 
4 
6 

4900 
2559 
4500 
1300 
1550 
1272 
1950 
2750 
1458 

Ass.  Dig.  p.  58. 
Sy.  Alb.  Di.  p.41. 

Do.          do. 
Synod  of  Geneva. 

Do.           do. 
As.  V.  6,  p.  21  Min. 
Synod  of  Geneva. 

Do.           do. 

Do.          do. 

167 

202 

19,861 

22,239 

Synod  of  Genes- 
see. 
Ontario, 
Niagara, 
Genessee, 
Rochester, 
Buffalo, 
Angelica, 

1817 
1817 
1819 
1819 
1823 
1828 

22 
13 
26 
29 
35 
11 

24 
14 
24 
25 
43 
20 

1087 
1015 

2267 
2850 
2226 
1429 

8 

9 

8 

10 

24 

1487 
1465 
2669 
3500 
3750 
1429 

Synod  of  Geneva. 
Do.          do. 
Do.          do. 
Do.          do. 
Do.      Genessee. 
Do.      Geneva. 

136 

150 

10,874 

14,300 

Synod  of  West- 
ern Reserve. 
Grand  River, 
Portage, 
Huron, 
Trumbull, 
Cleaveland, 
Maumee, 
Lorain, 
Medina, 

1814 
1818 
1823 
1827 
1830 
1836 
1836 
1836 

27 
29 
17 
11 
15 
7 
10 
10 

35 
24 
23 
16 
10 
8 
10 
13 

1934 

2019 

1176 

1298 

1100 

344 

642 

600 

9 

1 

1 

10 

7 

10 

10 

2200 

2264 

1200 

1398 

1200 

444 

694 

600 

Synod  Pittsburgh. 
Do.          do. 
Do.           do. 
Do.  \V.  Reserve. 
Do.          do. 
Do.           do. 
Do.           do. 
Do.           do. 

126 

139 

9121 

9400 

Total  in  four 
Synods, 

509 

599 

50,489 

57,724 

47 

Rec.  Eliakim  Phelps  was  called  to  testify  to  the  correctness  of 
the  statistical  list,  but  he  was  not  examined;  the  counsel  for  the 
respondents,  being  informed  that  it  was  prepared  from  the  publish- 
ed minutes,  agreed  to  admit  it  without  proof,  subject,  however,  to 
be  corrected,  if  any  error  should  be  discovered  in  it. 

Mr.  Randall  then  said,  there  is  another  case,  which  I  think  proper 
to  mention  here.  Though  somewhat  isolated  in  its  character,  it 
yet  forms  a  link  in  the  chain  of  testimony  which  hitherto  had  been 
kept  out  of  view.  I  now  speak  of  the  Third  Presbytery  of  Phila- 
delphia, which  contains  thirty-two  churches,  thirty-three  ministers, 
and  four  thousand  eight  hundred  and  fifty  communicants.  At  the 
same  meeting  of  the  General  Assembly,  (in  1837,)  this  presbytery 
was  declared  to  be  dissolved — but  without  attaching,  according  to 
the  principles  of  the  constitution,  the  ministers  and  churches  be- 
longing thereto  to  other  presbyteries.  They  were  left  to  apply  for 
admission  to  other  presbyteries,  and,  of  course,  to  incur  the  risk 
of  being  told,  if  they  applied,  "  We  do  not  know  you."  This  act, 
like  the  excision  of  the  synods,  w^as  wholly  without  citation,  trial, 
or  proof,  and  without  accusation. 

Mr.  Randall  then  read  from  the  minutes  of  the  General  Assembly 
of  1837,  beginning  with  the  organization,  as  follows:  (page  411.) 

The  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America,  met  agreeably  to  appointment,  in  the  Central  Presbyterian  Church,  in 
the  city  of  Philadelphia,  on  Thursday,  the  18th  day  of  May,  1837,  at  11  o'clock, 
A.  M.;  and  was  opened  with  a  sermon  by  the  Rev.  John  Witherspoon,  D.  D.,  the 
Moderator  of  the  last  Assembly,  &c. 

The  Standing-  Committee  of  Commissioners  reported  that  the  following-  persons 
present  have  been  duly  appointed  Commissioners  to  this  General  Assembly. 

Here  he  presented  the  list  of  members  of  the  General  Assembly 
of  1837,  pp.  411  to  414,  showing  that  every  one  of  the  presbyteries 
in  the  four  synods  of  Utica,  Geneva,  Genessee  and  Western  Re- 
serve, were  represented,  their  delegates  amounting,  in  all,  to  the 
number  o{  fifty-one,  of  whom  thirty-five  were  ministers,  and  sixteen 
elders.  These  voted  in  the  choice  of  moderator,  and  up  to  a  cer- 
tain period,  took  a  part  in  all  the  proceedings  of  the  Assembly. 

From  the  same  minutes,  page  419,  remarking  that  here  com- 
menced the  record  of  that  scries  of  acts  which  resulted  in  the  exci- 
sion of  these  synods,  he  read  as  follows : 

Monday  morning-,  May  22d. — The  Assembly  met.  Sec. 

The  Committee  to  whom  overture  No.  1,  viz: 

"The  memorial  and  testimony  of  the  Convention,"  had  been  referred,  made  a 
report,  in  part;  and  their  report  was  read  and  accepted. 

It  was  moved  to  adopt  so  much  of  the  report  as  relates  to  doctrinal  errors,  where- 
upon a  motion  was  made  to  amend  the  report  by  adding-  to  the  specification  of 
errors,  certain  others,  when,  after  some  debate  it  was 

Resolved,  That  the  whole  subject  be  postponed,  and  made  the  order  of  the  day 
for  to-morrow. 

Resolved,  That  that  part  of  the  report  which  refers  to  the  Plan  of  Union  between 
Presbyterians  and  Congi-egationalists  in  the  new  settlements,  adopted  in  1801,  be 
made  the  order  of  the  day  for  this  afternoon. 

Monday  afternoon,  &c. 

The  Assembly  proceeded  to  the  order  of  the  day,  viz.  That  part  of  the  report 
of  the  committee  on  overture.  No.  1,  which  relates  to  the  "Plan  of  Union"  adopted 
in  1801. 

The  report  was  read  and  adopted,  in  part,  as  follows,  viz: 


48 

In  regard  to  the  relation  existing  between  the  Presbyterian  and  Con.a^reg'ational 
Churches,  the  committee  recommend  the  adoption  of  the  following  resolutions: 

1.  That  between  these  two  branches  of  the  American  Church,  there  ought,  in  the 
judgment  of  this  Assembly,  to  be  maintained  sentiments  of  mutual  respect  and  es- 
teem, and  for  that  purpose  no  reasonable  efforts  should  be  omitted  to  preserve  a 
perfectly  good  understanding  between  these  branches  of  the  church  of  Christ. 

2.  That  it  is  expedient  to  continue  the  plan  of  friendly  intercourse,  between  this 
church  and  the  Congregational  churches  of  New  England,  as  it  now  exists. 

A  third  resolution  to  abrogate  the  "  Plan  of  Union,"  was  discussed  for  some  time. 

Tuesday  morning.  May  23d,  &c. 

The  order  of  the  day,  viz.,  that  part  of  the  report  of  the  committee  on  overture 
No.  1,  whicli  relates  to  doctrinal  errors,  was  postponed,  with  a  view  of  resuming 
the  unfinished  business  of  yesterday,  viz.,  that  part  of  the  report  of  the  same  com- 
mittee, which  recommends  the  abrogation  of  the  "Plan  of  Union." 

The  third  resolution  on  this  subject  was  taken  up,  and  discussed  for  a  consider- 
able time. 

Tuesday  afternoon,  &c. 

The  Assembly  resumed  the  unfinished  business  of  the  morning,  viz.,  that  part  of 
the  report  of  the  committee  on  overture,  No  1,  which  recommends  the  abrogation 
of  the  "Plan  of  Union."  The  resolution  was  discussed  for  some  time,  when  the 
previous  question  was  demanded,  and  decided  in  the  affirmative,  by  yeas  and  nays, 
us  follows,  viz: 

Shall  the  main  question  be  now  put  ? 

Yeas— 129:  nays— 123. 

The  resolution  was  tlien  adopted,  by  yeas  and  nays,  as  follows,  viz: 

3.  But  as  the  "Plan  of  Union"  adopted  for  the  new  settlements  in  1801,  was 
originally  an  unconstitutional  act  on  the  part  of  that  Assembly — these  Important 
standing  rules  having  never  been  submitted  to  the  presbyteries — and  as  they  were 
totally  destitute  of  authority  as  proceeding  from  the  General  Association  of  Con- 
necticut, which  is  invested  with  no  power  to  legislate  in  such  cases,  and  especially 
to  enact  laws  to  regulate  churches  not  within  her  limits;  and  as  much  confusion  and 
irregularity  have  arisen  from  this  unnatural  and  unconstitutional  system  of  union, 
therefore,  it  is  resolved,  that  the  act  of  assembly  of  1801,  entitled  a  "  Plan  of  Union," 
be,  and  the  same  is  hereby  abrogated."     See  Digest,  pp.  297-299. 

Yeas — 143:  nays — 110. 

Wednesday  afternoon.  May  24th. — The  committee  on  overture  No.  1,  viz.,  "the 
Testimony  and  Memorial  of  the  Convention,"  made  a  further  report,  "  respecting 
so  much  of  the  memorial  as  relates  to  the  toleration  of  gross  errors  in  doctrine,  or 
disorders  in  practice,  by  inferior  judicatories."  The  report  was  read  and  accepted. 
The  report  was  then  recommitted,  and  the  committee  was  instructed  to  make  a  full 
report  on  the  memorial  as  soon  as  convenient. 

The  Assembly  proceeded  to  the  order  of  the  day,  postponed  from  yesterday, 
viz.,  that  pai't  of  the  re]3ort  of  the  committee  on  the  memorial  which  relates  to  doc- 
trinal errors.  When,  the  motion  to  amend  the  report  by  adding  to  the  specifica- 
tion of  errors  certain  others,  was  discussed  for  some  time;  it  was  then  moved  that 
the  amendment  be  indefinitely  postponed;  and  after  some  debate,  the  Assembly 
adjourned  till  to-morrow  morning  at  9  o'clock. 

Thursday  morning.  May  25th. — A  motion  was  made  that  the  Assembly  now  take 
up  so  much  of  the  report  of  the  committee  on  the  memorial,  as  relates  to  the  tolera- 
tion of  disorders  in  practice,  and  errors  in  doctrine,  by  inferior  judicatories.  Ad- 
journed till  this  afternoon  at  half  past  3  o'clock. 

Afternoon. — The  house  resumed  the  unfinished  business  of  this  morning,  viz., 
the  motion  to  take  up  that  part  of  the  report  of  the  committee  on  the  memorial 
which  relates  to  tlie  toleration  of  disorders  in  practice,  and  errors  in  doctrine,  by 
inferior  judicatories.  The  motion  was  carried.  And  resolutions  to  cite  to  the  bar 
of  the  next  Assembly  such  inferior  judicatories  as  shall  appear  to  be  charged  by 
common  fame  with  irregularities,  were  offered  and  debated  a  considerable  time. 

Friday  morning,  May  26th. — The  Assembly  resumed  the  unfinished  business  of 
yesterday,  viz.,  the  resolution  to  cite  to  the  bar  of  the  next  Assembly  such  inferior 
judicatories  as  shall  appear  to  be  charged  by  common  fame  with  the  toleration  of 
gross  errors  in  doctrine,  and  disorders  in  practice;  and  after  debate,  the  Assembly 
adjourned  till  the  afternoon. 

Afternoon. — The  Assembly  resumed  the  unfinished  business  of  the  morning,  viz., 
;',^  rpcoliitions  to  cite  to  the  bar  of  the  next  Assembly  such  inferior  judicatories  as 


49 

may  be  charged  by  common  fame  with  the  toleration  of  gross  errors  in  doctrine, 
and  disorders  in  practice;  and,  after  debate,  the  previous  question  was  demanded, 
and  decided  in  the  affirmative,  by  yesis  and  nays,  as  follows,  viz: 
"  Shall  the  main  question  be  now  put  ?" 

Then  follow  the  yeas  141,  and  the  nays  108. 

The  resolutions  were  then  adopted,  by  yeas  and  nays,  as  follows,  viz: 

1.  Resolved,  That  the  proper  steps  be  now  taken,  to  cite  to  the  bar  of  the  next 
Assembly,  such  inferior  judicatories  as  are  charged  by  common  fame  with  irregu- 
larities, 

2.  That  a  special  committee  be  now  appointed  to  ascertain  what  inferior  judica- 
tories are  thus  charged  by  common  fame,  prepare  charges  and  specifications  against 
them,  and  to  digest  a  suitable  plan  of  pi'ocedurc  in  the  matter;  and  that  said  com- 
mittee be  requested  to  report  as  soon  as  practicable. 

3.  That,  as  citations  on  the  foregoing  plan  is  the  commencement  of  a  process  In- 
volving the  right  of  membership  in  the  Assembly;  therefore,  resolved,  that  agree- 
ably to  a  principle  laid  down,  chap.  v.  sec.  9th,  of  the  "Form  of  Government,"  the 
members  of  said  judicatories  be  excluded  from  a  seat  In  the  next  Assembly,  until 
their  case  shall  be  decided. 

Then  follow  the  yeas  128,  and  nays  122.     Non  liquet  1. 

Resolved,  That  the  committee  to  be  appointed  under  the  foregoing  resolutions, 
consist  of  five  members. 

Mr.  Hay,  for  himself  and  others,  gave  notice  of  a  protest  against  the  foregoing 
resolutions. 

Mr.  Cleveland,  for  himself  and  otliers,  gave  notice  of  a  protest  against  the  reso- 
lutions adopted  on  Thursday  last,  abrogating  the  "Plan  of  Union." 

Mr.  Breckinridge  gave  notice,  that  he  would  to-morrow  morning  offer  a  resolu- 
tion to  appoint  a  committee,  to  consist  of  equal  numbers  from  the  majoi-ity  and  mi- 
nority on  the  vote  to  cite  inferior  judicatories,  to  inquire  into  the  expediency  of  a 
voluntary  division  of  the  Presbyterian  churcli. 

Saturday  morning.  May  27th. — Agreeably  to  notice  given  last  evening,  Mr. 
Breckinridge  moved  that  a  committee  of  ten  members,  of  whom  an  equal  number 
shall  be  from  the  majority  and  minority  of  the  vote  on  the  resolutions  to  cite  infe- 
rior judicatories,  be  appointed  on  the  state  of  the  church. 

Dr.  Junkin  and  Mr.  Ewing,  on  the  part  of  the  majority,  and  Messrs.  A.  Campbell 
and  Jessup,  on  the  part  of  the  minority,  were  appointed  to  nominate  each  five  mem- 
bers of  the  committee  on  the  foregoing  resolutions. 

Ur.  Junkin  and  Mr.  Campbell,  from  the  committees  to  nominate  the  committee 
often  on  the  state  of  the  church,  respectfully  reported  the  following  nomination, 
viz:  Mr.  Breckinridge,  Dr.  Alexander,  Dr.  Cuyler,  Dr.  Witherspoon,  and  Mr. 
Ewing,  on  the  part  of  the  majority;  and  Dr.  McAuley,  Dr.  Beman,  Dr.  Peters,  Mr. 
Dickinson,  and  Mr.  Jessup,  on  the  part  of  the  minority.  The  report  was  adopted; 
and  the  committee  was  directed  to  meet  in  this  house  at  the  rising  of  the  Assembly 
this  morning,  and  afterwards  on  their  own  adjournments. 

On  motion,  the  Assembly  engaged  in  prayer,  on  behalf  of  this  committee,  and  of 
the  subject  referred  to  them. 

Tuesday  morning.  May  30th. — Tlve  committee  on  the  state  of  the  church,  re- 
ported by  their  chairman.  Dr.  Alexander,  that  they  had  not  been  able  to  agree,  and 
asked  to  be  discharged. 

Both  portions  of  the  committee  then  made  separate  reports,  accompanied  by  va- 
rious papers,  which  reports  and  papers  were  ordered  to  be  entered  upon  the 
minutes  of  the  Assembly. 

BEPORT  OF  THE  COMMITTEE  OF  THE  MAJORITY. 

The  Committee  of  the  Majority,  from  the  United  Committee  on  the  State  of  the 
Church,  beg  leave  to  report: 

That  having  been  unable  to  agree  with  the  Minority's  Committee  on  any  plan 
for  the  Immediate  and  voluntary  separation  of  the  New  and  Old  School  parties  in 
the  Presbyterian  church,  they  lay  before  the  General  Assembly  the  papers  which 
passed  between  the  committees,  and  which  contain  all  the  important  proceedings 
of  both  bodies. 

These  papers  are  marked  one  to  five  of  the  majority,  and  one  to  four  of  the  ml- 

5 


50 

nority.    A  careful  examination  of  them  will  show  that  the  two  committees  were 
agreed  in  the  following  matters,  namely: 

1.  The  propi'iety  of  a  voluntary  separation  of  the  parties  in  our  church;  and  their 
separate  organization. 

2.  As  to  the  corporate  funds,  the  names  to  be  held  by  each  denomination,  the 
records  of  the  church,  and  its  boards  and  institutions. 

It  will  further  appear,  that  the  committees  were  entirely  unable  to  agree,  on  the 
following  points,  namely: 

1.  As  to  the  propriety  of  entering  at  once,  by  the  Assembly,  upon  the  division, 
or  the  sending  down  of  the  question  to  the  presbyteries. 

2.  As  to  the  power  of  the  Assembly  to  take  effectual  initiative  steps,  as  proposed 
by  the  majority;  or  the  necessity  of  obtaining  a  change  in  the  constitution  of  the 
church. 

3.  As  to  the  breaking  up  of  the  succession  of  this  General  Assembly,  so  that 
neither  of  the  new  Assemblies  proposed,  to  be  considered  this  proper  body  con- 
tinued; or  that  the  body  which  should  retain  the  name  and  institutions  of  the  Gen- 
eral Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America,  should 
be  held  in  fiict  and  law,  to  be  the  true  successors  of  this  body.  While  the  com- 
mittee of  the  majority  were  perfectly  disposed  to  do  all  that  the  utmost  liberality 
could  demand,  and  to  use  in  all  cases  such  expressions  as  should  be  wholly  unex- 
ceptionable; yet  it  appears  to  us  indispensable  to  take  our  final  stand  on  these 
grounds. 

For,  Jirst,  we  are  convinced  that  if  any  thing  tending  towards  a  voluntary  separa- 
tion Is  done,  it  is  absolutely  necessary  to  do  it  .effectually,  and  at  once. 

Secondly.  As  neither  party  professes  any  desire  to  alter  any  constitutional  rule 
whatever,  it  seems  to  us  not  only  needless,  but  absurd,  to  send  down  an  overture 
to  the  presbyteries  on  this  subject.  We  believe,  moreover,  that  full  power  exists 
in  the  Assembly,  either  by  consent  of  parties,  or  in  the  way  of  discipline,  to  settle 
this,  and  all  such  cases;  and  that  its  speedy  settlement  is  greatly  to  be  desired. 

Thirdly.  In  regard  to  the  succession  of  the  General  Assembly,  this  committee 
could  not,  in  present  circumstances,  consent  to  any  thing  that  should  even  imply 
the  final  dissolution  of  the  Presbyterian  church,  as  now  organized  in  this  country; 
which  idea,  it  will  be  observed,  is  at  the  basis  of  the  plan  of  the  minority;  insomuch 
that  even  the  body  retaining  the  name  and  institutions  should  not  be  considered  the 
successor  of  this  body. 

Finally.  It  will  be  observed  from  our  fifth  paper,  as  compared  with  the  fourth 
paper  of  the  minority's  committee,  that  the  final  shape  which  their  proposal 
assumed,  was  such,  that  it  was  impossible  for  the  majority  of  the  house  to  carry  out 
its  views  and  wishes,  let  the  vote  be  as  It  might.  For  if  the  house  should  vote  for 
the  plan  of  the  committee  of  the  majority,  the  other  committee  would  not  consider 
itself,  or  its  friends,  bound  thereby :  and  voluntary  division  would  therefore  be  im- 
possible, in  that  case.  But  if  the  house  should  vote  for  the  minority's  plan,  then — 
the  foregoing  Insuperable  objections  to  that  plan  being  supposed  to  be  surmount- 
ed— still  the  whole  case  would  be  put  off,  perhaps  indefinitely. 

A.  Alexander,  C.  C.  Cuyler,  J.  Witherspoon,  N.  Ewing,  K.  J.  Breckinridge. 

KEPOHT  OF  THE  COMMITTEE  OF  THE  MINOKITT. 

The  subscribers,  appointed  members  of  the  Committee  of  ten  on  the  State  of 
the  Church,  respectfully  ask  leave  to  report,  as  follows: 

It  being  understood  that  one  object  of  the  appointment  of  said  committee  was  to 
consider  the  expediency  of  a  voluntary  division  of  the  Presbyterian  church,  and  to 
devise  a  plan  for  the  same,  they,  in  connexion  with  the  other  members  of  the  com- 
mittee, have  had  the  subject  under  deliberation. 

The  subscribers  had  believed  that  no  such  imperious  necessity  for  a  division  of 
the  church  existed,  as  some  of  their  brethren  supposed,  and  that  the  consequences 
of  division  would  be  greatly  to  be  deprecated.  SCich  necessity,  however,  being 
urged  by  many  of  our  brethren,  we  have  been  induced  to  yield  to  their  wishes,  and 
to  admit  the  expediency  of  a  division,  provided  the  same  could  be  accomplished  in 
an  amicable,  equitable,  and  proper  manner.  We  have  accordingly  submitted  the 
following  propositions  to  our  brethren  on  the  other  part  of  the  same  committee, 
who  at  the  same  time  submitted  to  us  their  proposition,  which  is  annexed  to  this 
report. 

[Here  read  the  Proposition  mai'ked  Minority  No.  1,  and  Majority  No.  1.] 

Being  informed  by  the  other  members  of  the  committee,  that  they  had  concluded 
not  to  discuss  in  committee  the  propositions  which  should  be  submitted,  and  that 


51 

all  propositions  on  both  sides  were  to  be  in  writing,  and  to  be  answered  in  writing, 
the  following  papers  passed  between  the  two  parts  of  the  committee:     Here  read. 
No.  2,  Minority  paper. 

2,  Majority      *' 

3,  Majority      " 

3,  Minority      " 

4,  Majority      " 

4,  Minority      " 

5,  Majority      " 

From  these  papers  it  will  be  seen,  that  the  only  question  of  any  importance  upon 
which  the  committee  differed,  was  that  proposed  to  be  submitted  to  the  decision  of 
the  Assembly,  as  preliminary  to  any  action  upon  the  details  of  either  plan.  There- 
fore, believing  that  the  members  of  this  Assembly  have  neither  a  constitutional  nor 
moral  right  to  adopt  a  plan  for  a  division  of  the  church,  in  relation  to  which  they 
are  entirely  uninstructed  by  the  presbyteries;  believing  that  the  course  proposed 
by  their  brethren  of  the  committee  to  be  entirely  inefficacious,  and  calculated  to 
introduce  confusion  and  discord  into  the  whole  church,  and  instead  of  mitigating, 
to  enhance  the  evils  which  it  proposes  to  remove;  and  regarding  the  plan  proposed 
by  themselves,  with  the  modifications  thereof  as  before  stated,  as  presenting  in 
general  the  only  safe,  certain,  and  constitutional  mode  of  division,  the  subscribers 
do  respectfully  present  the  same  to  the  Assembly  for  their  adoption  or  rejection. 

Thomas  M'Auley,  N.  S.  S.  Beman,  Absalom  Peters,  B.  Dickinson,  William 
Jessup. 

No.  1,  OF  THE  MAJORITT. 

The  portion  of  the  committee  which  represents  the  majority,  submit  for  con- 
sideration : 

1.  That  the  peace  and  prosperity  of  the  Presbyterian  Church  in  the  United 
States,  require  a  separation  of  the  portions  called  respectively  the  Old  and  New 
School  parties,  and  represented  by  the  majority  and  minority  in  the  present  As- 
sembly. 

2.  That  the  portion  of  the  church  represented  by  the  majority  in  the  present 
General  Assembly,  ought  to  retain  the  name  and  the  corporate  property  of  th  e 
General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America. 

3.  That  the  two  parties  ought  to  form  separate  denominations,  imder  separate 
organizations;  that  to  effect  this  with  the  least  delay,  the  commissioners  in  the 
present  General  Assembly  shall  elect  which  body  they  will  adhere  to,  and  this 
election  shall  decide  the  position  of  their  presbyteries  respectively  for  the  present ; 
that  every  presbytery  may  reverse  the  decision  of  its  present  commissioners,  and 
unite  with  the  opposite  body,  by  the  permission  of  that  body  properly  expressed; 
that  minorities  of  presbyteries,  if  large  enough,  or  if  not,  then  in  connexion  with 
neighbouring  minorities,  may  form  new  presbyteries,  or  attach  themselves  to  ex- 
isting presbyteries,  in  union  with  either  body,  as  shall  be  agreed  on ;  that  synods 
ought  to  take  order  and  make  election  on  the  general  principles  already  stated — 
and  minorities  of  synods  should  follow  out  the  rule  suggested  for  minorities  of 
presbyteries,  as  far  as  they  are  applicable. 

No.    1,    OF    THE    MINORITY. 

Whereas,  the  experience  of  many  years  has  proved  that  this  body  is  too  large  to 
answer  the  purposes  contemplated  by  the  constitution,  and  there  appear  to  be  in- 
superable obstacles  in  the  way  of  reducing  the  representation: 

And  whereas,  in  the  extension  of  the  church  over  so  great  a  territory,  embrac- 
ing such  a  variety  of  people,  difference  of  views  in  relation  to  important  points  of 
church  policy  and  action,  as  well  as  theological  opinion,  are  found  to  exist: 

Now,  it  is  believed,  a  division  of  this  body  into  two  separate  bodies,  which  shall 
act  independently  of  each  other,  will  be  of  vital  importance  to  the  best  interests 
of  the  Redeemer's  kingdom. 

Therefore,  resolved,  That  the  following  rules  be  sent  down  to  the  presbyteries, 
for  their  adoption  or  rejection,  as  constitutional  rules,  to  wit: 

1.  The  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America,  shall  be,  and  it  hereby  is  divided  into  two  bodies — the  one  thereof  to  be 
called  the  General  Assembly  of  the  Presbyterian  Chiu-ch  in  the  United  States  of 
America,  and  the  other,  the  General  Assembly  of  the  American  Presbyterian 
Church. 


52 

2.  That  the  Confession  of  Faith  and  form  of  government  of  the  Presbyterian 
Church  of  the  United  States  of  America,  as  it  now  exists,  shall  continue  to  be  the 
Confession  of  Faith  and  form  of  g-overnment  of  both  bodies,  until  it  shall  be  con- 
stitutionally chang-ed  and  altered  by  either,  in  the  manner  prescribed  therein. 

3.  That  in  sending  up  tlieir  commissioners  to  the  next  General  Assembly,  each 
presbytery,  after  having,  in  making  out  their  commissions,  followed  the  form  now 
prescribed,  shall  add  thereto  as  follows  :  «'  That  in  case  a  majority  of  the  presby- 
teries shall  have  voted  to  adopt  the  plan  for  organizing  two  General  Assemblies, 
we  direct  our  said  commissioners  to  attend  the  meeting  of  the  General  Assembly 
of  the  'Presbyterian  Church  of  the  United  States  of  America,'  or  the  '  American 
Presbyterian  Church,'  as  the  case  may  be."  And  after  the  opening  of  the  next 
General  Assembly,  and  before  proceeding  to  other  business  than  the  usual  prelimi- 
nary organization,  the  said  Assembly  shall  ascertain  what  is  the  vote  of  the  presby- 
teries ;  and  in  case  a  majority  of  said  presbyteries  shall  have  adopted  these  rules, 
then  the  two  General  Assemblies  shall  be  constituted  and  organized  in  the  manner 
now  pointed  out  in  the  form  of  government,  by  the  election  of  their  respective 
moderators,  stated  clerks,  and  other  officers. 

4.  The  several  Presbyteries  shall  be  deemed  and  taken  to  belong  to  that  Assem- 
bly with  which  they  shall  direct  their  commissioners  to  meet,  as  stated  in  the  pre- 
ceding rule.  And  each  General  Assembly  shall,  at  their  first  meeting,  as  aforesaid, 
organize  the  presbyteries  belonging  to  each,  into  synods.  And  in  case  any  pres- 
bytery shall  fail  to  decide  as  aforesaid,  at  that  time,  they  may  attach  themselves 
within  one  year  thereafter  to  the  Assembly  they  shall  prefer. 

5.  Churches,  and  members  of  churches,  as  well  as  presbyteries,  shall  be  at  full 
liberty  to  decide  to  which  of  said  Assemblies  they  will  be  attached ;  and  in  case 
the  majority  of  male  members  in  any  church  shall  decide  to  belong  to  a  presbytery 
connected  with  the  Assembly  to  which  their  presbytery  is  not  attached,  they  shall 
certify  the  same  to  the  Stated  Clerk  of  the  presbytery  which  they  wish  to  leave, 
and  the  one  with  which  they  wish  to  unite,  and  they  shall,  ipso  facto,  be  attached 
to  such  presbytery. 

6.  It  shall  be  the  duty  of  presbyteries,  at  their  first  meeting  after  the  adoption 
of  these  rules,  or  within  one  year  thereafter,  to  grant  certificates  of  dismission  to 
such  ministers,  licentiates,  and  students,  as  may  wish  to  unite  with  a  presbytery 
attached  to  the  other  General  Assembly. 

7.  It  shall  be  the  duty  of  church  sessions  to  grant  letters  of  dismission  to  such  of 
their  members,  being  in  regular  standing,  as  may  apply  for  the  same  within  one 
year  after  the  organization  of  said  Assemblies  under  these  rules,  for  the  purpose 
of  uniting  with  any  church  attached  to  a  presbytery  under  the  care  of  the  other 
General  Assembly;  and  if  such  session  refuse  so  to  dismiss,  it  shall  be  lawful  for 
such  members  to  unite  with  such  other  church,  in  the  same  manner  as  if  a  certifi- 
cate were  given. 

8.  The  Boards  of  Education  and  Missions  shall  continue  their  organizations  as. 
heretofore,  until  the  next  meeting  of  the  Assembly ;  and  in  case  the  rules  for  the 
division  of  the  Assembly  be  adopted,  those  boards  shall  be,  and  hereby  are  trans- 
fen-ed  to  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States 
of  America,  if  that  Assembly  at  its  first  meeting  shall  adopt  the  boards  as  their 
organizations  ;  and  the  seats  of  any  ministers  or  elders  in  those  boards,  not  belong- 
ing to  that  General  Assembh',  shall  be  deemed  to  be  vacant. 

9.  The  records  of  the  Assembly  shall  remain  in  the  hands  of  the  present  Stated 
Clerk,  for  the  mutual  use  and  benefit  of  both  General  Assemblies,  until,  by  such 
an  arrangement  as  they  may  adopt,  the}^  shall  appoint  some  other  person  to  take 
charge  of  the  same.  And  either  Assembly,  at  their  own  expense,  may  cause  such 
extracts  and  copies  to  be  made  thereof,  as  they  may  desire  and  direct. 

10.  The  Princeton  Seminary  funds  to  be  transferred  to  the  Board  of  Trustees  of 
the  seminar}',  if  it  can  be  so  done  legally  and  without  forfeiting  the  trusts  upon 
which  the  grants  were  made  ;  and  if  it  cannot  be  done  legally,  and  according  to 
the  intention  of  the  donors,  then  to  remain  with  the  present  Board  of  Trustees 
until  legislative  authority  be  given  for  such  transfer.  The  supervision  of  said 
seminary,  in  the  same  manner  in  which  it  is  now  exercised  by  the  General  Assem- 
bly,  to  be  transferred  to  and  vested  in  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States,  to  be  constituted.  The  other  funds  of  the  church  to 
be  divided  equally  between  the  two  Assemblies. 

Pass  a  resolution  suspending  the  operation  of  the  controverted  votes,  until  after 
the  next  Assembly. 


53 

No.    2,    OF    THE    MINORITY. 

The  committee  of  the  Minority,  &c.,  make  the  following  objections  to  the  pro- 
position of  the  Majority. 

1.  To  any  recognition  of  the  tern-.s,  "old  and  new  schools,"  or  "majority  and 
minority,"  of  the  present  Assembly,  in  any  action  upon  the  subject  of  division, 
the  Minority  expect  the  division  in  every  respect  to  be  equal;  no  other  would  be 
satisfactory. 

2.  Insisting  upon  an  equal  division,  we  are  willing  that  that  portion  of  the  church 
which  shall  choose  to  retain  the  present  Boards,  shall  have  the  present  name  of  the 
Assembly.  The  corporate  property  which  is  susceptible  of  division,  to  be  divided, 
as  the  only  fair  and  just  course. 

3.  We  object  to  the  power  of  the  commissioners  to  make  any  division  at  this 
time,  and  as  individuals  we  cannot  assume  the  responsibility. 

No.    2,    OF    THE    MAJORITY. 

• 
The  committee  of  the  Majority,  having  considered  the  paper  submitted  by  that 
of  the  Minority,  observe: 

1.  That  they  suppose  the  propriety  and  necessity  of  a  division  of  the  church  may 
be  considered  as  agreed  on  by  both  committees;  but  we  think  it  not  expedient  to 
attempt  giving  reasons  in  a  preamble — the  preamble  is  therefore  not  agreed  to. 

2.  So  much  of  No.  1,  of  the  plan  of  the  committee  of  the  Minority,  as  relates  to 
the  proposed  names  of  the  new  General  Assemblies,  is  agreed  to. 

3.  Nos.  1  to  8,  inclusive,  except  as  above,  are  not  agreed  to;  but  our  proposition. 
No.  3,  in  our  first  paper,  is  insisted  on.  But  we  agree  to  the  proposal  in  regard  to 
single  churches,  individual  ministers,  licentiates,  students,  and  private  members. 

4.  In  lieu  of  No.  9,  we  propose  that  the  present  Stated  Clerk  be  directed  to 
make  out  a  complete  copy  of  all  our  records,  at  the  joint  expense  of  both  the  new 
bodies,  and  after  causing  the  copy  to  be  examined  and  certified,  deliver  it  to  the 
written  order  of  the  moderator  and  stated  clerk  of  the  General  Assembly  of  the 
American  Presbyterian  church. 

5.  We  agree,  in  substance,  to  the  proposal  in  No.  10,  and  offer  the  following  as 
the  form  in  which  the  proposition  shall  stand:  that  the  corporate  funds  and  pro- 
perty of  the  church,  so  far  as  they  appertain  to  the  Theological  Seminary  at 
Princeton,  or  relate  to  the  professors'  support,  or  the  education  of  beneficiaries 
there,  shall  remain  the  property  of  the  body  retaining  the  name  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of  America;  that  all 
other  funds  shall  be  equally  divided  between  the  new  bodies,  so  far  as  it  can  be 
done  in  conformity  with  the  intentions  of  the  donors;  and  that  all  liabilities  of  the 
present  Assembly  shall  be  discharged  in  equal  portions  by  them:  that  all  questions 
relating  to  the  future  adjustment  of  this  whole  subject,  upon  the  principles  now 
agreed  on,  shall  be  settled  by  committees  appointed  by  the  new  As.semblies,  at 
their  first  meeting  respectively ;  and  if  these  committees  cannot  agree,  then  each 
committee  shall  select  one  arbitrator,  and  these  two,  a  tliird,  which  arbitrators  shall 
have  full  power  to  settle  finally  the  whole  case  in  all  its  parts;  and  that  no  person 
shall  be  appointed  an  arbitrator,  who  is  a  member  of  either  church — it  being  dis- 
tinctly understood  that  whatever  difficulties  may  arise  in  the  construction  of  trusts, 
and  all  other  questions  of  power,  as  well  as  right,  legal  and  equitable,  shall  be 
finally  decided  by  the  committees,  or  arbitrators,  so  as  in  all  cases  to  prevent  an 
appeal  by  either  party,  to  the  legal  tribunals  of  the  country. 

No.    3,    OF    THE    MINORITY. 

1.  We  accede  to  the  proposition  to  have  no  preamble. 

2.  We  accede  to  the  proposition  No.  4,  modifying  our  proposition  No.  9,  in  re- 
lation to  the  records  and  copies  of  the  records.  The  copy  to  be  made  within  one 
year  after  the  division. 

3.  We  assent  to  the  modification  of  No.  10,  by  No.  5  of  the  propositions  sub- 
mitted, with  a  trifling  alteration  in  the  phraseology,  striking  out  the  words,  "shall 
remain  the  property  of  the  body  retaining  the  name  of  the  General  Assembly  of  the 
Presbyterian  Church  in  tiie  United  States  of  America,"  and  inserting  the  words, 
"shall  be  transferred  and  belong  to  the  General  Assembly  of  the  Presbyterian 
Church  of  the  United  States,  hereby  constituted." 

4.  We  cannot  assent  to  any  division  by  the  present  commissioners  of  the  Assem- 
bly, as  it  would  in  no  wise  be  obligatory  on  any  of  the  judicatories  of  the  church, 
or  any  members  of  the  churches.     The  only  effect  would  be  a  disorderly  dissolu- 

5* 


54 

tion  of  the  present  Assembly,  and  be  of  no  binding  force  or  effect  upon  any  mem- 
ber who  did  not  assent  to  it. 

5.  We  propose  a  resolution  to  be  appended  to  the  rules,  and  which  we  believe, 
if  adopted  by  the  committee,  would  pass  with  great  unanimity,  urging  in  strong 
terms  the  adoption  of  the  rules  by  tlie  presbyteries;  and  the  members  of  the  mi- 
nority side  of  the  committee  pledge  themselves  to  use  their  influence  to  procure 
the  adoption  of  the  same  by  the  presbyteries. 

No.    3,    or    THK    MAJORITT^ 

The  committee  of  the  Majority,  &c.,  in  relation  to  paper  No.  2,  observe  : 

1.  That  the  terms,  "  old  and  new  school,  majority  and  minority,"  are  meant  as. 
descriptive — and  some  desciiption  being  necessary,  we  see  neither  impropriety 
nor  un suitableness  in  them. 

2.  Our  previous  paper,  No.  2,  having,  as  we  suppose,  substantially  acceded  to 
the  proposal  of  the  minority  in  relation  to  the  funds,  in  their  first  paper,  we  deem 
any  further  statement  on  that  subject  unnecessary. 

3.  That  we  see  no  difficulty  in  the  way  of  settling  the  matter  at  present,  subject 
to  the  revision  of  the  presbyteries,  as  provided  in  our  first  paper,  under  the  third 
head;  and  as  no  "constitutional  rules"  are  proposed  in  the  way  of  altering  any 
principles  of  our  system,  we  see  no  constitutional  obstacle  to  the  execution  of  the 
proposal  already  made.  We  therefore  adhere  to  that  plan  as  our  final  proposal. 
But  if  the  commissioners  of  any  presbytery  stiould  refuse  to  elect,  or  be  equally 
divided,  then  the  presbytery  which  they  represent  shall  make  such  election  at  its 
first  meeting  after  the  adjournment  of  the  present  General  Assembly. 

No.  4,    OF    THE    MAJORITY. 

The  committee  of  the  Majority,  &c.,  in  reply  to  paper  No.  3,  of  the  Minority'."* 
committee,  simply  refer  to  their  own  preceding  papers,  as  containing  their  final 
propositions. 

No.    4,    OF    THE    MIJfOKITT. 

The  committee  of  the  Minority,  In  reply  to  paper  No.  3,  of  the  Majority,  ob- 
serve : 

That  they  will  unite  in  a  report  to  the  Assembly,  stating  that  the  committee 
have  agreed  that  it  is  expedient  that  a  division  of  the  church  be  effected  ;  and  in 
general,  upon  the  principles  upon  which  it  is  to  be  carried  out — but  they  differ  as 
to  the  manner  of  eff'ecting  It. 

On  the  one  hand.  It  is  asked  that  a  division  be  made  by  the  present  Assemblyj, 
at  their  present  meeting;  and  on  the  other  hand,  that  the  plan  of  division,  with 
the  subsequent  ari-angement  and  organization,  shall  be  submitted  to  the  presbyte- 
ries, for  their  adoption  or  rejection. 

They  will  unite  In  asking  the  General  Assemblj"^  to  decide  the  above  points  pre- 
vious to  reporting  the  details — and  in  case  the  Assembly  decide  in  favour  of  Imme- 
diate division,  tlien  the  paper  No.  1,  of  the  majority,  with  the  modifications  agreed 
on,  be  taken  as  the  basis  of  the  report  in  detail. 

If  the  Assembly  decide  to  send  to  the  presbyteries,  then  No.  1,  of  the  Minority's 
papers,  with  tlie  modifications  agreed  on,  shall  be  the  basis  of  the  report  in  detail. 

The  committee  of  the  Minority  cannot  agree  to  any  other  propositions  than  those 
already  submitted,  until  the  above  be  settled  by  the  Assembly. 

If  the  above  proposition  be  not  agreed  to,  or  be  modified,  and  then  agreed  to, 
they  desire  that  each  side  may  make  a  report  to  the  Assembly  to-morrow  morning. 

No.    5,    OF    THE    MAJORITY. 

The  committee  of  the  Majority,  &c.,  in  answer  to  No.  4,  &.C.,  reply,  that  under- 
standing from  the  verbal  explanations  of  the  committee  of  the  Mmority,  that  the 
said  committee  would  not  consider  either  side  bound  by  the  vote  of  the  Assembly, 
if  It  were  against  their  views  and  wishes  respectively,  on  the  point  proposed  to  be 
submitted  to  Its  decision  In  said  paper,  to  carry  out  In  good  faitti  a  scheme  whicn. 
In  that  case,  could  not  be  approved  by  them ;  and  under  such  circumstances,  a 
voluntary  separation  being  manifestly  impossible,  this  committee  consider  No.  4,  of 
the  Minority,  as  virtually  a  waver  of  the  whole  subject.  If  nothing  further  re, 
mains  to  be  proposed,  they  submit  that  the  papers  be  laid  before  the  Assembly, 
and  that  the  united  committee  be  dissolved. 


55 

The  Committee  on  the  State  of  the  Church  was  discharged. 

It  was  moved  that  the  fui-ther  consideration  of  the  reports  be  indefinitely  post- 
poned ;  and,  after  debate, 

It  was  moved  that  this  whole  subject  be  laid  on  the  table  for  the  present.  The 
motion  was  adopted,  by  yeas  and  nays,  as  follows,  namely,  yeas  138,  nays  107. 

Mr.  Randall  added,  that  the  proceedings  for  an  amicable  separa- 
tion were  thus  at  a  stand:  this  method  of  "pacification"  failed — 
the  whole  subject  was  laid  on  the  table  ;  and  the  same  morning, 

A  resolution  was  offered,  that  the  Synod  of  the  Western  Reserve  is  not  a  part  of 
the  Presbyterian  church. 

This  resolution  was  debated  on  Tuesday  afternoon,  Wednesday 
morning,  May  31st,  and  Wednesday  afternoon. 

Thursday  morning,  June  1st. — The  Assembly  postponed  the  orders  of  the  day, 
and  resumed  the  unfinished  business  of  yesterday,  namely,  the  motion  to  postpone 
the  further  consideration  of  the  resolution  declaring  the  Synod  of  the  Western 
Reserve  not  to  be  a  part  of  the  Presbyterian  church.  And  after  debate,  the  pre- 
vious question  was  demanded,  and  decided  in  the  affirmative,  by  yeas  and  nays,  as 
follows,  namely. 

Shall  the  main  question  be  now  put  ? 

Then  follow  the  yeas  130,  nays  102.     Non  liquet  1. 

So  the  motion  to  postpone  was  cut  oflF.  And  then  the  original  resolution  was 
adopted,  by  yeas  and  nays,  as  follows,  namely. 

Resolved,  That  by  the  operation  of  the  abrogation  of  the  Plan  of  Union  of  1801, 
the  Synod  of  the  Western  Reserve,  is,  and  is  hereby  declared  to  be  no  longer  a 
part  of  the  Presbyterian  Church  in  the  United  States  of  America. 

Then  follow  the  yeas  132,  and  the  nays  105. 

Thursday  afternoon,  June  1st.  (Min.  page  441.) — A  motion  was  made,  that 
those  members  who  were  out  of  the  house  when  the  last  vote  of  this  morning  was 
taken,  be  allowed  to  have  tlieir  names  entered  among  the  yeas  and  nays:  after  de- 
bate, this  motion  was  laid  on  the  table. 

The  Assembly  proceeded  to  the  order  of  the  day,  namely,  the  election  of  Trus- 
tees of  the  General  Assembly. 

A  motion  was  made  that  this  election  be  by  ballot,  and  decided  in  the  affirma- 
tive, by  yeas  68,  nays  6. 

Before  the  vote  was  announced,  a  motion  was  made,  directing  the  clerk  to  call 
the  names  of  members  of  the  Western  Reserve  Synod,  which  motion  the  mode- 
rator decided  to  be  out  of  order.  An  appeal  was  taken  fi'om  the  moderator,  and 
the  house  sustained  his  decision. 

Mr.  Jessup  presented  a  written  demand  that  the  members  of  the  Western  Reserve 
Synod  be  admitted  to  vote,  in  the  election  now  in  progress,  and  protesting  against 
the  rejection  of  their  votes. 

The  paper  was  laid  on  the  table. 

Friday  morning,  June  2d. — A  protest  against  the  resolutions  of  the  Assembly 
abrogating  the  "Plan  of  Union"  of  1801,  was  introduced  and  accepted;  and  it 
was  referred  to  Dr.  Junkin,  Dr.  Green,  and  Mr.  Anderson — to  be  answered. 

Saturday  morning,  June  3d. — Mr.  Jessup  offered  a  paper,  purporting  to  be  a 
protest  from  the  commissioners,  members  of  the  Western  Reserve  Synod,  against 
the  resolution  of  this  Assembly,  declaring  that  that  synod  is  not  a  part  of  the  Pres- 
byterian Church.  The  protest  was  received,  read,  and  committed  to  Messrs, 
Plumer,  Ewing,  and  WoodhuU — to  be  answered. 

Dr.  Beman  introduced  a  protest,  signed  by  himself  and  others,  against  the  reso- 
lutions of  this  Assembly  respecting  the  citation  of  such  inferior  j  udicatories  as  may 
be  charged  by  common  fame  with  irregularities,  and  against  the  resolution  of  this 
Assembly,  declaring  the  Synod  of  the  Western  Reserve  not  to  be  a  part  of  the 
Presbyterian  Church.  The  protest  was  read,  accepted,  and  committed  to  Messrs. 
Breckinridge,  Annan,  and  C.  S.  Todd — to  be  answered. 

Resolutions  were  offered  by  Mr.  Breckinridge,  respecting  the  connexion  of  the 


56 

Synods  of  Utica,  Geneva  and  Genessee  with  the  Presbyterian  Church  of  the  United 
States.  A  division  of  the  question  was  called  for  by  Mr.  Jessup;  and,  after  debate, 
it  was  moved  by  Mr.  Jessup  to  postpone  the  resolutions,  with  a  view  of  introduc- 
ing- the  following  substitute,  viz. 

Whereas,  it  has  been  alleged,  that  the  Synods  of  Geneva,  Genessee  and  Utica, 
of  the  Presbyterian  Church  in  the  United  States  of  America,  have  been  g-uilty  of 
important  delinquency  and  grossly  unconstitutional  proceedings,  and  a  resolution 
predicated  on  this  allegation  to  exclude  the  said  synods  from  the  said  Presbyterian 
Church,  has  been  offered  in  this  Assembly  ;  and,  whereas,  no  specified  act  of  the 
said  synod  has  been  made  the  ground  of  proceeding  against  that  body,  nor  any 
specific  members  of  that  body  have  been  designated  as  the  delinquents;  and, 
whereas,  these  charges  are  denied  by  the  commissioners  representing  those  bodies 
on  this  floor,  and  an  inquiry  into  the  whole  matter  is  demanded;  and,  whereas,  a 
majority  of  the  members  of  the  synods  have  had  no  previous  notice  of  these  pro- 
ceedings, nor  of  the  existence  of  any  cliarge  against  them,  individually  or  collec- 
tively, nor  any  opportunity  of  defending  themselves  against  the  charges  so  brought 
against  them: 

Therefore,  Resolved,  That  the  Synods  of  Utica,  Geneva  and  Genessee,  be,  and 
hereby  are  cited  to  appear  on  the  third  Thursday  of  May  next,  at  Philadelphia, 
before  the  next  General  Assembly  of  the  Pi-esbyterian  Church  in  the  United  States 
of  America,  to  show  what  they  have  done  or  failed  to  do,  in  the  case  in  question, 
and,  if  necessary,  generally  to  answer  any  charges  that  may  or  can  be  alleged 
against  them,  to  the  end  that  the  whole  matter  may  be  examined  into,  deliberated 
upon,  and  judged  of,  accordmg  to  the  Constitution  and  Discipline  of  the  Presbyte- 
rian Church  in  the  United  States  of  America. 

Monday  morning,  June  5th. — The  Assembly  resumed  the  unfinished  business  of 
Saturday,  viz.  the  motion  to  postpone  the  lesolution  offered  by  Mr.  Breckinridge, 
respecting  the  connexion  of  the  Synods  of  Utica,  Geneva,  and  Genessee,  with  the 
Presbyterian  Church,  for  the  purpose  of  introducing  a  resolution  to  cite  those 
synods  to  the  bar  of  the  next  Assembly. 

Monday  afternoon. — The  Assembly  resumed  the  unfinished  business  of  this 
morning,  viz.  the  motion  to  postpone  the  resolutions  respecting  the  Synods  of 
Utica,  Geneva  and  Genessee;  and,  after  debate,  the  previous  question  was  de- 
manded, and  decided  in  the  affirmative;  and  the  motion  to  postpone  being  cut  off 
by  the  previous  question,  the  resolutions  were  divided,  and  the  first  was  adopted, 
by  yeas  and  nays,  as  follows,  viz. 

Be  it  resolved  by  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America, 

1.  That  in  consequence  of  the  abrogation,  by  this  Assembly,  of  the  Plan  of  Union 
of  1801,  between  it  and  the  General  Association  of  Connecticut,  as  utterly  unconsti- 
tutional, and  therefore  null  and  void  from  the  beginning,  the  Synods  of  Utica,  Ge- 
neva and  Genessee,  which  were  formed  and  attached  to  this  body,  under  and  in 
execution  of  said  "Plan  of  Union,"  be,  and  are  iiereby  declared  to  be  out  of  the 
ecclesiastical  connexion  of  the  Presbyterian  Church  of  the  United  States  of  Ame- 
rica, and  that  they  are  not  in  form  or  in  fact  an  integral  portion  of  said  church. 

(Yeas  115,  nays  88.     Non  liquet  1.) 

The  second,  third,  and  fourth  resolutions  were  then  adopted,  by  yeas  and  nays, 
as  follows,  viz. 

2.  That  the  sohcitude  of  this  Assembly  on  the  whole  subject,  and  its  urgency 
for  the  immediate  decision  of  it,  are  greatly  increased  by  reason  of  tlie  gross  disor- 
ders whicli  are  ascertained  to  have  prevailed  in  those  synods,  (as  well  as  that  of  the 
Western  Reserve,  against  which  a  declarative  resolution,  similar  to  the  first  of  ' 
these,  has  been  passed  during  our  present  session,)  it  being  made  clear  to  us,  that 
even  the  Plan  of  Union  itself  was  never  consistently  carried  into  effect  by  those 
professing  to  act  under  it. 

3.  That  the  General  Assembly  has  no  intention,  by  these  resolutions,  or  by  that 
passed  in  the  case  of  the  Synod  of  the  Western  Reserve,  to  affect  in  any  way  the 
ministerial  standing  of  any  members  of  either  of  said  synods;  nor  to  disturb  the 
pastoral  relation  in  any  church;  nor  to  interfere  with  the  duties  or  relation  of  pri- 
vate Christians  in  their  respective  congregations  ;  but  only  to  declare  and  deter- 
mine according  to  the  truth  and  necessity  of  the  case,  and  by  virtue  of  the  full 
authority  existing  in  it  for  that  purpose,  the  relation  of  all  said  synods,  and  all  their 
constitutent  parts  to  this  body,  and  to  the  Presbyterian  Church  in  the  United 
States. 


57 

4.  That  inasmuch  as  there  are  reported  to  be  several  churches  and  ministers,  if 
not  one  or  two  presbji;eries,  now  in  connexion  with  one  or  more  of  said  synods, 
which  are  strictly  Presbyterian  in  doctrine  and  order,  be  it,  therefore,  further  re- 
solved, that  all  such  churches  and  ministers  as  wish  to  unite  with  us,  are  hereby 
directed  to  apply  for  admission  into  those  presbyteries  belong'ing  to  our  connexion 
which  are  most  convenient  to  their  respective  locations;  and  that  any  such  presby- 
tery as  aforesaid,  being  strictly  Presbyterian  in  doctrine  and  order,  and  now  in 
connexion  with  either  of  said  synods,  as  may  desire  to  unite  with  us,  are  hereby 
directed  to  make  application,  with  a  full  statement  of  their  cases,  to  the  next 
General  Assembly,  which  will  take  proper  order  thereon. 

(Yeas  113,  nays  60.) 

Tuesday  morning-,  June  6th. — The  following-  resolutions  were  oftered  by  Dr. 
Alexander,  viz. 

Resolved,  That  the  following-  be  added  to  the  Rules  of  the  General  Assembly  : — 

1.  That  no  commissioner  from  a  new  formed  presbytery  shall  be  permitted  to 
take  his  seat,  nor  shall  such  commissioner  be  reported  by  the  Committee  on  Com- 
missions, until  the  presbytery  shall  have  been  duly  reported  by  the  synod,. and 
recognized  as  such  by  the  Assembly;  and  that  the  same  rule  apply  when  the  name 
of  any  presbytery  has  been  changed. 

2.  When  it  shall  appear  to  the  satisfaction  of  the  General  Assembly,  that  any 
new  presbytery  has  been  formed  for  the  purpose  of  unduly  increasing  the  repre- 
sentation, the  General  Assembly  will,  by  a  vote  of  the  majority,  refuse  to  receive 
the  delegates  of  presbyteries  so  formed,  and  may  direct  the  synod  to  which  such 
presbytery  belongs,  to  re-unite  it  to  the  presbytery  or  presbyteries  to  which  the 
members  were  before  attached. 

After  debate,  it  was  moved  to  lay  the  resolutions  on  the  table.  The  motion  was 
decided,  by  yeas  and  nays,  as  follows,  viz. 

(Yeas  44,  nays  115.) 

So  the  motion  to  lay  on  the  table  was  lost.  After  further  debate,  the  resolutions 
were  carried. 

Tuesday  afternoon. — A  protest,  signed  by  the  commissioners  from  the  Synods  of 
Genessee,  Geneva,  and  Utica,  against  the  resolutions  of  this  Assembly  declaring 
those  Synods  to  be  out  of  the  Presbyterian  Church,  was  received,  read,  and  refer- 
red to  Dr.  Witherspoon,  Mr.  Murray,  and  Dr.  Simpson — to  be  answered. 

Mr.  Breckinridge  offered  the  following  resolutions,  viz. 

Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America, 

1..  That  the  Presbyteries  of  Wilmington  and  the  Third  Presbytery  of  Philadel- 
phia, be,  and  hereby  are  dissolved. 

2.  The  territory  embraced  in  these  presbyteries  is  annexed  to  those  to  which  it 
respectively  appertained  before  their  creation.  Their  stated  clerks  are  directed 
to  deposite  all  their  records  and  other  papers,  in  the  hands  of  the  Stated  Clerk  of 
the  Synod  of  Philadelphia,  on  or  before  the  first  day  of  the  sessions  of  that  synod, 
at  its  first  meeting  after  the  Assembly  adjourns. 

3.  The  candidates  and  foreign  missionaries  of  the  Presbytery  of  Wilmington,  ar6 
hereby  attached  to  the  Presbytery  of  New  Castle ;  and  those  of  the  Third  Presby- 
tery of  Philadelphia,  to  the  First  Presbytery  of  Philadelphia. 

4.  The  ministers,  churches,  and  licentiates  in  the  two  presbyteries  hereby  dis- 
solved, are  directed  to  apply  without  delay  to  the  presbyteries  to  which  they  most 
naturally  belong,  for  admission  into  them;  and  upon  application  so  made,  by  any 
duly  organized  Presbyterian  church,  it  shall  be  received;  but  as  great,  long  con- 
tinued, and  increasing  common  fame  charges  errors  and  irregularities  in  doctrine 
and  order  in  both  these  presbyteries,  it  is  hereby  ordered,  that  all  presbyteries  to 
which  any  of  the  ministers  or  licentiates  now  belonging  to  either  of  them  shall  ap- 
ply for  admission,  shall  strictly  examine  them,  touching  their  soundness  in  the 
faith,  and  other  matters,  as  shall  seem  good  to  the  presbyteries  to  which  applica- 
tion for  admission  may  be  made. 

5.  If  either  of  the  aforesaid  presbyteries,  or  any  church,  minister,  licentiate, 
missionary,  or  candidate,  shall  fail  or  refuse  to  comply  with  the  terms  of  these 
resolutions,  according  to  their  true  intent,  said  presbytery,  church,  or  person,  as 
the  case  may  be,  is  hereby  declared  to  be  henceforward,  de  facto,  out  of  the  com- 
munion of  the  Presbyterian  Church  in  the  United  States  of  America,  and  no  longer 
an  integral  portion  thereof. 

6.  These  resolutions  shall  be  in  force  from  and  after  the  final  adjournment  of  the 
present  sessions  of  the  General  Assembly. 


58 

After  debate,  Mr.  Lowrie  moved  to  amend  these  resolutions,  by  striking  out  all 
after  the  word  "received,"  in  the  4th  resolution,  and  also  the  whole  of  the  5th  and 
6lh  resolutions;  and  after  debate,  it  was  moved  to  commit  this  whole  subject  to  a 
special  committee;  and,  after  further  debate. 

The  Assembly  adjourned  till  9  o'clock  to-morrow  morning. 

Wednesday  morning,  June  7th. — Mr.  Breckinridge  offered  the  following  pre- 
amble and  resolutions,  viz. 

Whereas,  it  has  come  to  the  knowledge  of  this  General  Assembly,  that  the  per- 
sons who  were  appointed  commissioners  to  this  body  from  the  presbyteries  attached 
to  the  Synod  of  the  Western  Reserve,  have  served  a  notice  upon  the  Treasurer 
of  the  Trustees  of  the  General  Assembly,  "  not  to  regard  any  orders  drawn,  nor 
any  resolutions  passed  by  this  Assembly,  since  the  passage  of  the  act  which  de- 
clared said  Svnod  of  the  Western  Reserve  to  be  no  longer  in  the  connexion  of 
the  body  represented  in  this  General  Assembly;"  and  whereas,  said  notice  is  no 
doubt  to  be  considered  as  the  commencement  of  a  series  of  judicial  investigations, 
growing  out  of  the  proceedings  of  this  Assembly,  in  reforming  the  church,  du- 
ring its  present  sessions;  now,  therefore,  be  it  resolved,  by  the  General  Assembly 
of  the  Presbyterian  Church  in  the  United  States  of  America, 

1.  That  this  Assembly  expects  of  its  trustees,  full  compliance  with  all  its  acts  as 
in  past  times,  and  relies  confidently  on  their  continued  fidelity  to  the  church,  in  the 
discharge  of  all  the  important  duties  devolving  on  them. 

2.  That  the  Presbyterian  Church  is  morally  responsible,  and  will  fully  and 
cheerfully  meet  that  responsibility,  to  sustain  their  trustees  in  all  their  acts,  in  con- 
sequence of  any  resolution  passed  or  order  given  in  virtue  of  such  resolution  of  the 
present  or  any  other  General  Assembly — and  to  hold  said  trustees  harmless  by  rea- 
son of  any  loss  or  damage  they  may  personally  sustain  thereby. 

3.  That  this  Assembly,  in  virtue  of  the  powers  vested  in  it  by  the  act  incorpo- 
rating its  trustees,  do  hereby,  in  writing,  direct  their  trustees  to  continue  to  pay  as 
heretofore,  and  to  have  no  manner  of  respect  to  the  notice  mentioned  above,  nor 
to  any  similar  notice  that  may  come  to  their  knowledge.  And  these  resolutions, 
duly  signed  and  certified,  shall  be  delivered  to  them  on  the  part  of  this  Assembly. 

Mr.  Breckinridge  read  the  notice  referred  to  in  the  resolutions :  and  after  de- 
bate, the  resolutions  were  adopted. 

Wednesday  afternoon,  June  7th. — On  motion  of  Mr.  Breckinridge, 

The  Assembly  took  up  the  unfinished  business  of  yesterday,  viz.  the  motion  to 
amend  the  resolutions  respecting  the  connexion  of  the  Third  Presbytery  of  Phila- 
delphia, and  the  Presbytery  of  Wilmington,  with  the  Presbyterian  Church.     And, 

On  motion  of  Mr.  Breckinridge,  the  resolutions  were  amended,  by  striking  out 
every  thing  relating  to  the  Presbytery  of  Wilmington. 

The  motion  offered  yesterday  by  Mr.  Lowrie,  to  amend  the  resolutions  by  strik- 
ing out  all  after  the  word  "received,"  in  the  fourth  resolution,  and  the  whole  of 
the  fifth  resolution,  was  then  renewed  and  adopted. 

And,  after  debate. 

It  was  moved  to  lay  this  whole  subject  on  the  table.  The  motion  was  decided 
in  the  negative,  by  yeas  and  nays,  as  follows,  viz. 

(Yeas  59,  nays  71.     Non  liquet  3.) 

So  the  house  refused  to  lay  the  resolutions  on  the  table. 

The  previous  question  was  then  demanded,  and  having  been  decided  in  the 
affirmative. 

The  resolutions  as  amended,  were  agreed  to,  by  yeas  and  nays,  as  follows,  viz. 

Be  it  resolved,  by  the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America, 

1.  That  the  Third  Presbytery  of  Philadelphia,  be,  and  hereby  is  dissolved. 

2.  The  territory  embraced  in  this  presbytery  is  re-annexed  to  those  to  which  it 
respectively  appertained  before  its  creation.  Its  stated  clerk  is  directed  to  depo- 
site  all  records  and  other  papers,  in  the  hands  of  the  Stated  Clerk  of  the  Synod  of 
Philadelphia,  on  or  before  the  first  day  of  the  sessions  of  that  synod,  at  its  first 
meeting  after  tins  Assembly  adjourns. 

3.  The  candidates  and  foreign  missionaries  of  the  Third  Presbytery  of  Phila- 
delphia, are  hereby  attached  to  the  Presbytery  of  Philadelphia. 

4.  The  ministers,  churches,  and  licentiates,  in  the  presbytery  hereby  dissolved, 
are  directed  to  apply  without  delay,  to  the  presbyteries  to  which  they  most  natu- 
rally belong,  for  admission  into  them.  And  upon  application  being  so  made  by 
any  duly  organized  Presbyterian  church,  it  shall  be  received. 


59 

5.  These  resolutions  shall  be  in  force  from  and  after  the  final  adjournment  of  the 
present  sessions  of  the  General  Assembly. 
(Yeas  75,  nays  60.) 

During  and  subsequent  to  the  proceedings  which  have  been  read 
fronn  the  minutes  of  the  Assembly  of  1837,  those  minutes  show, 
(said  Mr.  Randall,)  that  several  protests  against  the  measures  of 
excision  were  presented  to  the  General  Assembly ;  each  of  them 
was  followed  by  an  answer,  prepared  by  a  committee  appointed 
for  that  special  purpose,  and  these  answers  were  adopted  by  the 
Assembly. 

These  were  all  offered  in  evidence  by  the  plaintiffs;  and  Mr. 
Randall,  after  reading  at  some  length,  proposed,  and  the  opposite 
counsel  agreed,  that,  to  save  time,  the  whole  of  the  minutes  of  the 
General  Assembly  of  1837,  should  be  considered  in  evidence,  with- 
out further  reading;  and  to  be  employed  as  either  party  might  have 
occasion  in  argument.  The  protests,  and  the  answers,  with  their 
dates  as  they  respectively  appear  in  the  minutes  of  the  Assembly, 
are  here  subjoined. 

Minutes  of  Assembly. 

Wednesday  morning-,  June  7th. — Mr.  Plumer,  from  the  committee  to  answer  the 
protest  sig-ned  by  the  commissioners  from  the  Western  Reserve  Synod,  made  a  re- 
port. The  report  was  read,  accepted,  and  adopted;  and  the  protest  and  the  answer 
were  ordered  to  be  entered  on  the  minutes,  and  are  as  follows,  viz. 


Philadelphia,  June  2,  1837. 
We,  the  subscribers,  commissioners  to  this  General  Assembly,  from  the  Presby- 
teries of  Grand  River,  Trumbull,  Portage,  Cleaveland,  Lorain,  Medina,  Huron,  and 
Maumee,  feel  it  our  duty  to  enter  our  solemn  protest  and  remonstrance  against 
what  we  regard  the  unconstitutional  and  unjust  act  of  the  Assembly,  by  which  we 
are  interrupted  in  the  discharge  of  the  duties  assigned  us  by  our  respective  Pres- 
byteries, and  excluded  from  the  floo^  of  this  house,  and  from  the  Presbyterian 
church  of  these  United  States  of  America;  and  by  which  the  General  Assembly 
of  the  said  church  is  actually  dismembered — and  for  the  following  reasons,  viz. 

1.  We  were  regularly  appointed,  by  our  Presbyteries,  commissioned  in  due  form, 
and  admitted  to  our  seats  in  tliis  Assembly,  and  exercised  our  undisputed  rights  as 
members,  for  two  weeks. 

2.  The  Presbyteries  represented  by  us,  all  have  a  regular  Presbyterian  exist- 
ence, according  to  the  constitution  of  the  Presbyterian  church,  as  interpreted  and 
administered  by  all  the  courts  of  the  chuixh;  and  some  of  these  presbyteries  ex- 
isted prior  to  the  adoption  of  the  constitution  in  1821,  and  participated  in  that 
act. 

3.  If  there  was  any  thing  wrong  in  the  original  organization  of  our  Presbyte- 
ries— which  we  do  not  admit  or  believe — this  wrong  was  chargeable,  not  upon  us, 
but  upon  the  Synod  of  Pittsburgh,  from  whose  act  our  original  Presbyteries  re- 
ceived their  existence,  and  which  act  has  been  sanctioned  by  twenty-two  General 
Assemblies,  up  to  the  pi-esent  time. 

4.  But  if — after  an  administration  of  the  constitution  for  thirty-six  years,  on  the 
assumption  that  the  "Plan  of  Union"  with  the  "Association  of  Connecticut"  was 
constitutional — a  different  conclusion  is  now  arrived  at,  we  can  see  no  reason  wiiy 
this  new  discovery,  which  legally  concerns  the  "accommodation  churches"  only, 
should  be  made  a  reason  why  presbyteries,  ministers,  and  elders,  regularly  intro- 
duced into  the  Presbyterian  church,  according  to  its  known  and  common  forms, 
should  be  driven,  without  a  constitutional  trial,  from  the  rights  and  privileges  se- 
cured to  them  by  our  constitution. 

5.  If  it  be  assumed  that  the  existence  of  churches  on  the  "  accommodation  plan" 
rightfully  annihilates  the  existence  of  all  presbyteries  and  synods  where  such 


60 

churches  have  been  formed,  we  see  not  why  this  principle  should  be  confined  in 
its  severe  application  to  the  "  Synod  of  the  Western  Reserve,"  when  it  is  known 
that  the  same  system  has  prevailed  in  the  synods  of  Alban)',  New  Jersey,  and  South 
Carolina,  and  Georgia ;  and  extensively  in  other  synods  under  the  care  of  the 
General  Assembly.  And,  if  the  toleration  of  the  "accommodation  plan"  proves 
so  fatal  to  tlie  existence  of  inferior  courts,  we  see  not  why  the  originating  and  the 
fostering  of  this  plan  for  thirty-six  years,  should  not  render  nug-atory  all  the  acts  of 
the  Assembly  itself,  and  even  destroy  its  charter. 

A  principle  which  leads  to  results  so  disastrous  and  "suicidal"  to  the  Presbyte- 
rian church,  we  cannot  regard  as  constitutional. 

6.  Once  admit  that  regularly  appointed  commissioners  may  be  excluded  instan- 
ier,  without  a  charge  of  discourtesy  to  the  house,  and  without  trial,  and  the  way  is 
open  to  drive  from  the  General  Assembly,  under  some  pretext  or  other,  any  mem- 
ber, or  any  number  of  members,  who,  for  the  time  being,  may  be  obnoxious  to  the 
majority.  This  principle  annihilates  at  once  and  for  ever,  the  rights  of  presbyte- 
ries on  this  floor,  and  renders  the  constitution  itself  a  dead  letter. 

We  complain  not  so  much  that  we  were  denied  a  patient  hearing — that  it  was 
professed  we  were  not  on  trial,  on  the  ground  that  we  were  already  out  of  the 
house,  by  the  passage  of  a  previous  resolution  ;  and  that  still  testimony  was  elicited 
from  us  catechetically,  which,  we  tliink,  was  abused  to  our  condemnation — that 
the  whole  case  on  which  hung  the  destiny  of  the  synod,  was  hurried  through,  and 
finally  closed  by  the  "previous  question,"  which  shut  up  the  mouths  of  ourselves 
and  our  friends — that,  finally,  we  were  furnished  with  no  communication  dismiss- 
ing us  from  the  house  in  a  courteous  manner.  Ml  this  we  have  felt  to  he  unkind 
and  unjust  treatment ;  but  we  have  passed  it  over,  to  select  our  reasons  for  protest 
from  the  great  principles  of  Presbyterianism,  which,  in  our  case,  have  been  vio- 
lated. We,  therefore,  wish  to  leave  this  our  solemn  protest  on  the  records  of  a 
court,  of  which  we  still  regard  ourselves  as  rightful  members.  Having  done  this, 
we  commit  our  case  to  the  calm  decision  of  the  church  at  large — of  posterity — of 
God. 

Rufus  Nutting,  Alanson  Saunders,  Henry  Brown,  Eldad  Barber,  John  Sew- 
ard, William  Fuller,  Joseph  H.  Breck,  James  Boyd,  Harmon  Kingsbury, 
Isaac  J.  Rice,  Varnum  Noyes,  Benjamin  Woodbury,  Dudley  Williams. 


The  General  Assembly  might  not  only  decline  to  reply  to  the  Protest  signed  by 
the  commissioners  from  the  presbyteries  composing  the  Synod  of  the  Western  Re- 
serve, but  even  refuse  to  admit  it  to  record.  For  if  the  "  Plan  of  Union"  was  un- 
constitutional, and  therefore  void,  from  the  beginning,  and  the  existence  of  these 
presbyteries  was  founded  on  that  Plan  of  Union,  then  they  never  had  a  constitu- 
tional existence,  and  their  commissioners  never  had  a  constitutional  right  to  a  seat 
in  the  General  Assembly.  The  Assembly,  therefore,  do  not  exclude  those  whom 
they  admit  once  had  a  right  to  seats  here,  but  they  simply  declare  that,  from  tlie  un- 
constitutional organization  of  these  presbyteries,  their  commissioners  never  had, 
and  of  course  now  have  not  a  right  to  seats  in  tliis  Assembly.  They  therefore  had 
no  "right  to  vote,"  and  consequently  had  no  "right  to  join  in  a  protest"  against 
any  decision  of  this  house,  or  to  have  their  protest  admitted  to  recoi'd.  They  did 
vote,  however,  in  the  decision  against  which  they  protest:  but  if  they  did  that  in 
one  case  which  the  constitution  did  not  authorize,  that  certainly  gives  them  no  right 
to  do  another  thing  which  depended  on  their  right  to  do  the  first  act. 

But  the  Assembly  desire  to  treat  those  brethren  with  all  courtesy,  and  therefore 
allow  their  Protest  a  place  in  the  records. 

To  their  reasons  for  protesting,  the  following  answers  are  given. 

It  seems,  however,  to  be  proper,  in  the  first  place,  to  state  the  great  principle  on 
which  the  Assembly  decided. 

We  believe  that  our  powers,  as  a  judiciary,  are  limited  and  prescribed  by  the 
constitution  of  the  Presbyterian  church.  Whatever  any  Assembly  may  do  which 
it  is  not  authorized  by  the  constitution  to  do,  is  not  binding  on  any  interior  judi- 
catory, nor  on  any  subsequent  Assembly, 

The  constitution  provides  that  all  our  judicatories  shall  be  composed  of  bishops 
or  ministers  and  ruhng  elders  of  the  Presbyterian  church,  and  the  General  Assem- 
bly have  no  right  to  introduce  into  any  of  the  judicatories  any  other  persons  claim- 
ing to  hold  any  other  offices,  either  in  the  Presbyterian  church,  or  any  other 
church.  And  should  they  attempt  to  do  this,  no  one  is  bound  by  it.  But  the 
General  Assembly  of  1801  did  permit  members  of  standing  committees  in  churches 


61 

not  Presbyterian,  "  to  sit  and  act"  in  our  presbyteries,  and  under  this  provision 
lliey  have  sat  in  the  hig-her  judicatories  of  tlie  church. 

On  a  thoi-oug'ii  investigation,  it  is. now  fully  ascertained  that  tliey  had  no  author- 
ity from  the  constitution  to  admit  officers  from  any  other  denomination  of  Christians 
to  sit  and  act  in  our  judicatories;  and,  therefore,  no  presbytery  or  synod  tlius  con- 
stituted, is  recopi'nised  by  the  constitution  of  our  church,  and  no  subsequent  Gene- 
ral Assembl}'  is  bound  to  recognise  them. 

The  presbyteries  of  the  Synod  of  the  Western  Reserve  are  thus  constituted — for 
committee-men  are  permitted  "to  sit  and  act"  in  all  these  presbyteries  ;  therefore 
this  General  Assembly  cannot  recognise  the  constitutional  existence  of  these  pres- 
byteries. 

The  fact  that  they  have  been  recognised  by  former  Assemblies,  cannot  bind  this 
Assembly,  when  it  is  fully  convinced  of  the  unconstitutionality  of  the  organiza- 
tion. 

In  reply  to  the  first  reason  in  the  Protest,  namely,  that  they  were  regularly  ap- 
pointed hy  their  presbyteries,  &c.,  we  say  they  v/ere  not  regularly  appointed — for 
it  is  admitted  that  these  committee-men  are  allowed  to  vote  for  commissioners  to 
the  Assembly,  and  these  illegal  votes,  of  which  there  may  have  been  a  majority, 
renders  the  appointment  illegal.  They  held  their  seats  in  this  Assembly  for  some 
time,  it  is  true,  but  this  gives  them  no  right  to  continue  to  hold  them  after  it  is  as- 
certained that  they  had  no  constitutional  right  to  seats. 

As  to  the  second  reason  that  their  presbyteries  have  a  regular  Presbyterian  ex- 
istence, it  is  denied  by  this  Assembly,  and  on  this  ground  they-.-ire  denied  seats. 
The  existence  of  presbyteries  thus  constituted,  is  recognised  neicher  in  the  former 
nor  the  amended  constitution  of  the  church. 

o.  If  the  Synod  of  Pittsburgh  constituted  presbyteries  in  part  of  materials  not 
allowed  by  the  constitution,  this  Assembly  is  not  bound  to  recognise  them. 

4.  It  is  well  known  to  those  acquainted  witli  the  history  of  this  General  Assem- 
bly, that  the  "  Plan  of  Union,"  as  an  unconntitutional  compact,  has  long  been  a 
subject  of  complaint,  and  as  long  ago  as  the  year  iS31,  the  Assembly  resolved,  that 
the  appointment  of  members,  of  standing  cominittees,  to  be  members  of  the  Gene- 
ral Assembly,  was  of  questionable  constitutionality,  and  therefore  ought  not  in 
future  to  be'made  ;  and  since  that  time  none  have  been  received  in  the  Assembly, 
known  to  be  such.  But  their  right  to  seats  here  is  just  as  constitutional  as  in  the 
presbytery. 

The  protestants  still  assume  that  their  presbyteries  are  regularly  constituted, 
while  we  consider  it  a  fundamenial  departure  from  our  system  to  organize  a  pres- 
bytery with  one  or  two  Presbyterian  churclies,  and  ten  or  twelve  of  another  de- 
nomination of  Christians.  And  had  none  but  Presbyterian  churches  been  allowed 
to  belong  to  the  presbyteries,  some  of  these  presbyteries  never  would  have  existed. 
Tlie  representatives  of  these  churches,  on  the  accommodation  plan,  form  a  con- 
stituent part  of  these  presbyteries,  as  really  as  the  pastors  or  elders,  and  this 
Assembly  can  recog;use  no  presbytery  thus  constituted,  as  belonging  to  the  Pres- 
byterian Cuurch. 

5.  The  Assembly  h.is  extended  the  operation  of  this  principle  to  other  synods 
which  they  find  simiJarly  constituted.  But  even  if  they  did  not,  this  injures  not 
the  Synod" or  the  Western  Reserve. 

6.  "Once  admit  that  reg-ularly  appointed  commissioners  may  be  excluded,"  &c. 
This  is  assuming  whr-t  we  deny.  Many  of  those  who  voted  for  these  commission- 
ers, and,  for  aught  we  know,  a  majority  were  neither  bishops  nor  ruling-  elders  in 
tiic  Presbyterian  Church,  and  therefore  had  no  right  to  vote  for  those  commis- 
sioners. 

The  constitution  says  expressly,  it  (the  General  Assembly)  shall  represent  in 
one  body,  all  the  particular  churches  of  this  denomination :  but  these  commissioners 
were  voted  for  by  the  delegates  of  churches  of  another  denomination ,-  therefore 
they  represent  churches  of  another  denomination.  According  to  their  own  show- 
ing, there  is  one  presbytery  with  only  one  Presbyterian  church,  another  with  two, 
and  in  the  whole  synod,  containing  one  hundred  and  thirty-nine  churches,  there 
are  only  twenty-five,  or  at  most,  thirty  Presbyterian  churches,  and  one.  hundred 
and  nine  Congregational  churches,  or  churches  of  a  mixed  character.  It  cannot, 
therefore,  be  a  Presbyterian  body,  where  more  than  three-fourths  of  the  churches 
are  not  Presbyterian.  It  is  perfectly  manifest,  that  in  a  body  thus  constituted,  it 
would  often  occur  that  the  commissioners  elected  would  be  chosen  by  those  who 
had  no  rio-ht  to  vote,  and  so  they  would  be  the  representatives,  not  of  the  Presby- 
terian, but  of  the  Congregational  denomination. 

6 


62 

We  would  observe,  in  reference  to  the  conclusion  of  the  Protest,  that  the  mem- 
bers of  the  Synod  of  the  Western  Reserve,  and  their  friends,  occupied  a  larger 
space  in  the  discussion  than  the  majority  of  the  Assembly ;  and  the  "previous 
question"  was  not  called  for  until  it  was  manifest  that  the  minds  of  members  were 
made  up.  As  the  Assembly  has  already  made  provision  for  the  organization  into 
presbyteries,  and  annexation  to  this  body,  of  all  the  ministers  and  churches  who 
are  thoroughly  Presbyterian,  it  is  not  necessary  to  reply  to  the  closing  remarks  of 
the  Protest. 


Dr.  Junkin,  from  the  committee  to  answer  the  Protest  against  the  abrogation  of 
the  Plan  of  Union,  made  a  report.  The  report  was  read,  accepted,  and  adopted  ; 
and  the  Protest  and  answer  were  ordered  to  be  entered  on  the  Minutes,  and  a^e  as 
follows,  viz: 


PROTEST. 


The  undersigned,  members  of  the  General  Assemblj^,  respectfully  present  the 
following  Protest  against  the  resolutions  of  said  Assembly,  adopted  on  the  23d  ult., 
abrogati7ig the  act  of  the  General  Assembly  of  1801,  entitled  "a Plan  of  Union," 
&c.,  and  for  the  fqllowing  reasons,  viz : 

1.  Because  the  ScMd  act  is  declared,  in  the  resolution  complained  of,  to  have 
been  unconstitutional.  The  utmost  that  can  be  said  on  this  subject  is,  that  it  is  an 
act  neither  specifically  provided  for,  nor  prohibited,  in  the  constitution.  It  cannot, 
therefore,  be  affirmed  to  be  contrary  to  the  constitution. 

The  constitution  provides,  \hat  before  any  constitutional  rules  proposed  by  the 
General  Assembly  to  be  establisAied,  shall  be  obligatory  on  all  the  churches,  the 
approval  of  them  by  a  majority  ot  presbyteries  must  be  first  obtained.  (Form  of 
Government,  c.XII.,  sec.  6.)  The  aciof  the  Assembly  adopting  the  Plan  of  Union, 
it  is  admitted,  was  not  previously  transmitted  to  the  presbyteries  for  their  approval. 
It  does  not  therefore  follow,  however,  that  that  act  was  unconstitutional — because 
the  provisions  of  the  Plan  of  Union  were,  neither  in  fact,  nor  ever  regarded  by  any 
of  the  presbyteries  as  "  constitutional  rules,"  "  to  be  obligatory  on  all  the  churches." 
They  were  the  mere  terms  of  an  agreement,  or  treaty,  between  the  General  As- 
sembly of  the  Presbyterian  Church  and  the  Central  Association  of  Connecticut, 
and  through  that  Association,  with  all  t\ie  churches  which  have  been  formed  ac- 
cording- to  the  terms  of  that  treaty. 

In  tlie  act  of  the  Assembly  adopting  that  Flan  of  Union,  the  General  Assembly 
being  constitutionally  "  the  bond  of  Union,  peace,  correspondence,  and  mutual 
confidence,  among  all  our  churches,"  (Form  of  Government,  c.  XII.,  sec.  4,) 
merely  exercised  its  legitimate  functions,  agreeably  to  the  constitution,  (Form  of 
Government,  c.  I.,  sec.  2,)  in  declaring  "the  tern-.s  of  admission  into  the  com- 
munion" of  the  Presbyterian  Church,  proper  to  be  required  on  the  frontier  settle- 
ments. And  in  this  light  the  entire  Presbyterian  Chiirch  has  so  regarded  this 
Plan  of  Union,  from  its  adoption  up  to  the  present  time,  \dien  the  abrogation  of  it 
is  publicly  declared,  by  the  advocates  of  the  measure,  to  be  necessary  for  the  ac- 
quisition and  perpetuation  of  power  to  accomplish  the  ends  avowed  and  sought  by 
the  minority  of  the  last  General  Assembl}',  and  prosecuted  by  means  of  a  conven- 
tion, called  at  their  instance,  and  holding  its  sessions  cotemporaneously  with  those 
of  the  Assembly.  For,  the  following  facts  are  undeniable,  namely.  1st.  That  the 
Plan  of  Union  now  declared  to  be  unconstitutional,  was  formed  tweutt  years  be- 
fore the  adoption  of  the  present  constitution  of  the  Presbyterian  Church:  2d.  That 
this  Plan,  at  the  time  of  tlie  adoption  of  the  constitution,  was  in  full  and  efficient 
operation,  and  of  acknowledged  authority  as  common  law  in  the  church:  3d.  That 
it  had  been  recognised  and  respected,  in  numerous  precedents,  in  the  doings  of  the 
General  Assembly,  from  )'ear  to  year:  and  4th.  That  for  sixteen  yeaiis  since  the 
adoption  of  this  constitution,  it  has  been  regarded  of  equal  authority  with  any  act 
whatever  to  which  the  General  Assembly  is  constitutionally  competent, 

Had  the  Plan  of  Union,  and  the  act  of  the  General  Assembly  adopting  it,  been 
regarded  unconstitutional  and  null,  as  being  either  an  assumption  of  power  not 
granted,  or  a  trespass  on  the  rights  of  presbyteries,  some  remonstrance,  or  objection 
to  the  imposition  of  constitutional  rules  for  the  government  of  all  the  churches, 
not  legitimately  enacted,  would  have  been  heard  from  some  quarter,  before  the 


63 

lapse  of  one  third  of  a  century.  Had  the  Plan  of  Union  been  thought  ille.a^al,  or 
had  it  been  designed  or  desired,  by  the  presbyteries  in  1821,  when  the  constitution 
was  revised,  amended,  and  adopted  by  them  a  second  time,  to  frustrate  or  resist 
the  operation  of  this  Plan,  unquestionably  either  the  revised  and  amended  consti- 
tution would  have  had  embodied  in  it  some  provision  against  it,  or  some  attempt  at 
least  would  have  been  made  to  that  effect.  The  truth  is,  that  the  Plan  of  Union, 
adopted  by  the  General  Assembly,  was  felt  to  be  morally  binding  as  a  solemn  agree- 
ment or  treaty,  duly  ratified  by  the  power  constitutionally  competent  to  do  so,  and 
by  no  means  the  enactment  of  constitutional  rules  to  be  "obhgatory  on  all  the 
churches"  for  their  government. 

It  is  to  no  purpose,  in  our  opinion,  to  allege  the  unconstitutionality  of  the  Plan 
of  Union,  by  pleading,  that  for  a  church  to  be  regarded  as  a  Presbyterian  church, 
it  must,  according  to  our  constitution,  be  organized  with  ruling  elders,  while  that 
plan  provides  for  the  organization  of  churches  in  certain  cases,  without  such  offi- 
cers— because  the  Plan  of  Union  designedly  contemplates  a  process,  which  the  As- 
sembly was  constitutionally  competent  to  prescribe,  and  which  the  entire  church 
had  approved,  by  which  churches  on  the  frontier  settlements  may  be  organized 
partially  at  first  on  the  Presbyterian  ground,  and  be  gradually  brought  fully  on  to 
it;  and  because,  if  the  provisions  of  the  constitution  prescribing  the  full  form  of 
organization  proper  for  a  Presbyterian  church,  must  in  every  case  be  minutely  and 
completely  observed,  and  any  deviation  from  it  should  vitiate  the  organization, 
then  must  those  numerous  churches  among  us,  in  which  there  are  no  deacons,  be 
for  the  same  reason  pronounced  unconstitutional. 

The  attempt,  too,  to  prove  the  unconstitutionality  of  the  act  of  the  Assembly 
adopting  the  Plan  of  Union,  by  attributing  to  the  provisions  of  that  plan  the  cha- 
racter of  constitutional  rules  obligatory  on  all  the  churches,  and  by  objecting  that 
the  presbyteries  had  not  been  previously  consulted,  strikes  as  directly,  and  is  as 
conclusive  against  the  plans  adopted  for  the  organization  and  government  of  the 
Theological  Seminaries  at  Princeton  and  Allegheny,  of  the  Boards  of  Education 
and  of  Missions,  and  for  the  union  and  perpetuated  existence  of  the  presbyteries 
belonging  to  the  General  Synod  of  the  Associate  Reformed  Church,  who  were  ad- 
mitted into  the  communion  with  the  Presbyterian  Church,  by  the  terms  of  a  Plan 
of  Union  agreed  upon  between  that  Synod  and  the  General  Assembly:  for  the  pro- 
visions of  these  plans  have  never  been  transmitted  to  the  presbyteries  for  their 
approval.  If,  therefore,  the  Plan  of  Union  with  the  General  Association  of  Con- 
necticut is  to  be  abrogated  because  of  alleged  unconstitutionality  on  these  grounds, 
so  must  be  the  rules  and  regulations  and  the  whole  organization  and  government 
of  the  Theological  Seminaries  of  the  General  Assembly,  and  also  the  act  of  the 
Assembly  by  which  the  presbyteries  of  the  Associated  Reformed  Synod  were 
united  with  the  Presbyterian  Church  of  these  United  States,  and  by  which  the 
General  Assembly  became  possessed  of  the  valuable  theological  library,  known  as 
the  Mason  Library,  now  in  Princeton,  and  formerly  belonging  to  the  Associate  Re- 
formed Synod. 

2.  We  protest  against  the  resolution  referred  to,  because  the  Plan  of  Union 
adopted  by  the  General  Assembly  of  1801  was  designed  to  suppress  and  prevent 
schismatical  contentions,  and  for  the  promotion  of  charity, — or,  in  the  language  of 
the  Plan  itself,  "  with  a  view  to  prevent  alienation,  and  promote  union  and  har- 
mony," which,  through  a  long  series  of  years,  it  has  been  efficient  in  doing,  and 
has  proved,  both  itself  efficacious  to  do,  and  the  wisdom  of  the  Assembly  in  its 
projection  and  adoption  ;  both  which  ends  the  General  Assembly  is  constitutionally 
competent  to  design,  and  for  which  It  is  invested  with  ample  authority  by  the  con- 
stitution, (Form  of  Government,  c.  XII.,  sec.  5,)  and  held  responsible  by  the  great 
Head  of  the  Church. 

3.  We  protest  against  the  resolution  referred  to,  because  it  declares  the  said 
"  Plan  of  Union"  to  have  been  "  totally  destitute  of  authority  as  proceeding  from 
the  General  Association  of  Connecticut,  whlcli  is  invested  with  no  power  to  legis- 
late in  such  cases."  Even  on  the  assumption,  that  the  said  Association  was  invested 
with  no  such  power — which,  it  seems  to  us,  both  indecorous  and  irrelevant  for  this 
General  Assembly  to  assert  as  a  reason  for  the  resolution  adopted — we  cannot  doubt 
that  that  Association  had  full  power  to  agree  to  the  stipulations  of  a  treaty  or  con- 
tract, proposed  by  the  General  Assembly,  and  urged  on  the  acceptance  of  the 
General  Association;  and  especially,  when  it  is  considered,  that  by  acceding  to  the 
said  stipulations,  the  said  Association  relinquished  whatever  right  it  h  id  to  the 
direction  and  regulation  of  the  members  of  its  own  churches  in  the  new  settle- 
ments, and  allowed  and  influenced  them  to  increase,  both  the  numbers  and  the  pe- 


64 

-.uniary  and  spiritual  strength  of  the  Presbyterian  Church.  And  even  if  the  plan 
referred  to  had  r.ot  authority  in  so  far  as  it  emanated  from  tlie  General  Association 
of  Connecticut,  which  we  by  no  means  admit,  it  was  unquestionably  binding'  on 
the  General  Assembly,  by  virtue  of  its  own  eng-agement,  to  fulfil  its  own  obliga- 
tions, and  after  numerous  churches  had  been  formed  under  their  own  care,  the 
obhgations  of  the  plan  appear  to  us  to  have  been  common  to  tlie  General  Assem- 
bly, the  General  Association  of  Connecticut,  and  the  churches,  presbyteries,  and 
synods,  formed  in  pursuance  and  in  the  faith  of  it,  and  that  no  one  of  these  bodies 
could  lawfully  abrogate  it  without  the  consent  of  all  the  others.  Our  opinion, 
therefore  is,  that  the  resolution  of  this  General  Assembly,  abrogating  the  said  Plan 
of  Union,  so  far  as  it  was  intended  to  affect  churches  already  formed  under  its  pro- 
visions, is  a  breach  of  faith,  and  wholly  void  and  of  no  effect;  that  all  such  churches 
have  a  right  to  continue  their  organization  on  the  conditions  of  the  said  plan;  and 
that  it  is  the  duty  of  the  presbyteries,  the  synods,  and  all  future  General  Assem- 
blies to  protect  them  in  that  right,  until  they  sliall  voluntarily,  under  the  kind  and 
conciliatory  influence  of  the  aforesaid  bodies,  adopt  the  Presbyterian  organization 
in  full,  as  many  of  them  have  already  done,  and  others,  we  are  happy  to  learn,  will 
probably  soon  do,  if  allowed  to  exercise  their  clioice  unrestrained  by  the  attempted 
exercise  of  assumed  authority. 

4.  We  protest  against  the  said  resolution,  because  it  denominates  the  Plan  of 
Union  unnatural,  as  well  as  unconstitutional,  and  attributes  to  it  much  confusion 
and  irregularity;  whereas,  it  appears  to  us  to  have  been  a  most  natural,  wise  and 
benevolent  plan  for  promoting  the  unity,  increase,  and  purity  of  the  church  in  our 
new  settlements,  and  that  its  operation  for  thirty-six  years,  with  but  such  occa- 
sional irregularities  as  may  occur  under  any  system  of  government,  has,  on  the 
whole,  been  productive  of  benign  and  happy  effects;  in  view  of  which  this  General 
Assembly  and  the  whole  church  ought  to  cherish  sincere  and  devout  gratitude  to 
God. 

5.  We  protest  against  the  said  resolution,  because  the  mode  in  which  it  was 
brought  before  the  Assembly,  appears  to  us  to  have  been  exceedingly  exceptiona- 
ble, it  having  been  in  substance  proposed  in  the  memorial  of  a  convention,  of 
whose  alleged  cause  and  object,  and  of  mo.st  of  whose  declarations,  because  unac- 
companied with  satisfactory  proof,  we  wholly  disapprove,  and  which  memorial,  as 
coming  from  such  a  body,  we  think  this  Assembly  ought  not  to  have  received  and 
entertained,  especially  when  it  was  found  to  contain  representations  of  tlie  state  of 
the  church,  in  our  opinion  not  justified  by  fact,  and  of  very  injurious  tendency. 
Another  objection  to  the  mode  in  which  the  said  resolution  was  brought  before 
the  Assembly  is,  that  a  majority  of  the  committee  to  whom  the  memorial  was  re- 
fei'red,  and  who  reported  the  resolution  against  which  we  protest,  were  members 
of  the  convention  presenting  the  memorial. 

6.  We  protest,  because,  against  the  earnest  remonstrances  of  many  who  are  best 
acquainted  with  the  happy  effects  of  the  Plan  of  Union,  the  debate  on  the  subject 
was  arrested  by'  an  impatient  call  for  the  previous  question,  more  than  eighty  of  the 
members  voting  for  it,  having  been  members  of  the  convention  in  whose  name  the 
said  memorial  was  presented.  The  Assembly  was  thus  forced  to  a  decision  with- 
out any  proper  evidence  of  the  existence  of  the  alleged  irregularities,  and  before 
the  subject  of  errors  in  doctrine  had  been  discussed  in  the  Assembly,  notwith- 
standing the  memorialists  had  declared,  that  they  "  complain  and  testify,"  against 
said  Plan  of  Union,  "chiefly  because  of  their  sincere  belief,  tliat  the  doctrinal 
purity  of  our  ancient  Confession  of  Faith  is  endangered,  and  not  because  of  any 
preference  for  a  particular  system  of  mere  chiu'ch  government  and  discipline." 

For  these  reasons,  the  undersigned  enter  this  their  solemn  protest. 

Philadelphia,  June  1st,  1837. 

John  P.  Cleaveland;  William  Jessup,  Baxter  Dickinson,  Absalom  Peters, 
Henry  Brown,  Horace  Bushnell,  Harmon  Kinsbury,  Timothy  Stillman, 
David  Porter,  E.  W.  Gilbert,  Darius  0.  Griswold",  John  B.  "Richardson, 
James  B.  Shaw,  Washington  Thatcher,  Thomas  Brown,  Thomas  Louns- 
bury,  Nahum  Gould,  Abner  Hollister,  Epliraim  Cutler,  William  Fuller, 
Gardner  Hayden,  Robert  Stuarl,  Silas  West,  Marcus  Smith,  John  L. 
Grant,  John  Gridley,  Nathaniel  C.  Clark,  A'arnum  Noyes,  Dudley  Wil- 
liams, George  Spalding,  Jolm  Seward,  Edwin  Holt,  Alanson  Saunders, 
Jonathan  Cone,  J.  M.  Rowland,  J.  W.  M'Cullough,  Dewey  Whitney,  H. 
S.  Walbridge,  Horace  Hunt,  Samuel  Reed,  Rufus  Nutting,  Zina  Whittle- 
sey, James  R.  Gibson,  Bennet  Roberts,  Joseph  H.  Breck,  Enoch  KingSr 
bury,  Jam.es  Boyd,  Eldad  Barber,   David  Schenck,  Ira  Pettibone,  Lewis 


65 

H.  Loss,  Jonathan  Hovey,  J.  B.  Preston,  Ambrose  White,  Wilfred  Hall, 
John  S.  Martin,  Georg-e  Painter,  Benjamin  Woodbury,  Burr  Bradley,  Ira 
M.  Wead,  P.  W.  War'riner,  T.  D.  Soutlnvorth,  Adam  Miller,  Jacob  Paris, 
Alexander  Campbell,  N.  S.  S.  Beman,  H.  H.  Hayes,  Henry  Brewster,  N. 
E.  Johnson,  Solomon  Stevens,  Daniel  Sayre,  William  C.  Wisner,  Isaac  J. 
Rice,  Felix  Tracy,  Bliss  Burnap,  E.  Cheever,  E.  Seymour,  Obadiah 
Woodruff,  Frederick  W.  Graves,  James  I.  Ostrom,  Philip  C.  Hay,  Jacob 
Gideon,  David  B.  Ayers,  S.  W.  May,  Ammi  Doubleday,  Robert  Aikman, 
William  Roy,  Thomas  M'Auley,  John  Leonard,  Calvin  Cutler,  Merit  Har- 
mon, F.  A.  M'Corkle,  James  W.  Phillips,  George  E.  Delevan,  James  A. 
Carnahan,  Obadiah  N.  Bush,  John  M'Sween,  George  Duffield,  S.  Benja- 
min, John  Crawford,  Fayette  Shipherd,  Thomas  Williams,  R.  Campbell. 

ANSWER. 

The  committee  to  whom  that  subject  was  referred,  beg-  leave  to  present  the  fol- 
lowing answer  to  the  protest  against  the  resolution,  abrogating  "the  Plan  of 
Union,"  and  request  that  both  be  placed  on  your  minutes.  The  reasons  of  protest 
are  numbered  from  one  to  six.  No.  1,  is  the  principal,  and  therefore  we  prefer 
leaving  it  to  the  last,  and  commencing  with  No.  2.  "We  protest,"  say  the  mi- 
nority, "  against  the  resolution  referred  to,  because  the  Plan  of  Union  adopted  by 
the  General  Assembly  of  ]801,  was  designed  to  suppress  and  prevent  schismatical 
contentions,  and  for  the  promotion  of  charity,  or,  in  the  language  of  the  plan  itselfi 
"with  a  view  to  prevent  alienation  and  promote  union  and  harmony." 

To  this  a  sufficient  answer  is  found  in  the  broad  undeniable  fact,  that  "the  Plan 
of  Union"  has  been  a  principal  means  of  dividing  the  church  and  this  General  As- 
sembly into  two  parties,  and  been  the  main  source  of  those  schisms  which  fur  manj'' 
years  have  distracted  our  Zion.  Whilst  it  is  admitted,  tliat  in  some  instances  it 
may  have  beneficially  affected  certain  localities,  it  has  laid  the  deep  foundation 
of  lasting  confusion,  and  opened  wide  the  flood-gates  of  error  and  fanaticism.  For 
proof  of  this,  we  have  only  to  refer  to  the  recorded  votes  of  the  last  and  the  pre- 
sent General  Assemblies,  from  which  it  abundantly  appears,  that  the  representa- 
tives of  churches  formed  on  this  plan,  have  always  opposed  the  Boards  of  Educa- 
tion and  of  Missions,  and  the  efforts  towards  reform,  and  the  suppression  of  errors 
and  of  schismatical  contentions. 

No.  3.  "  Because  it  declares  the  said  •  Plan  of  Union'  to  have  been  totally  destitute 
of  authority,  as  proceeding  from  the  General  Association  of  Connecticut,  which  is 
invested  with  no  power  to  legislate  in  such  cases." 

In  reply  to  this,  let  it  be  remarked,  1st,  that  the  protestors  seeming  to  admit 
that  the  General  Association  of  Connecticut  had  no  power  and  authority  to  bind 
their  churches,  yet  insist  that  the  General  Assembly  could  make  a  treaty  or  cove- 
nant that  should  be  binding  on  the  other  side:  and  the  brethren  in  arguing  the 
case,  did  insist  on  the  "  Plan"  being  of  the  nature  of  a  covenant,  (aithougli  no  such 
term  is  contained  in  it,)  and  yet  one  of  the  parties  to  this  covenant  had  no  au- 
thority to  make  a  contract  and  to  make  it  obligatory  on  their  churches.  That  is,  a 
contract,  treaty,  or  covenant  can  exist  and  be  and  continue  for  ever,  binding  in 
right  and  in  law  upon  one  party,  whilst  tlie  other  party,  having  no  power  or  au- 
thority to  bind  themselves  and  those  for  whom  they  plead  its  benehts,  never  could 
be  bound.     That  is,  a  treaty  or  covenar.t  may  exist  without  a  mutual  obligation! 

2ndly.  The  protestors,  without  distinctly  affirming  it  again,  seem  willing  that 
the  reader  of  their  protest  should  believe  that- the  General  Association  of  Connec- 
ticut had  power  to  bind  their  churches — that  their  acts  participate  of  the  nature  of 
ecclesiastical  authority.  "  By  acceding  to  the  said  stipulations,"  say  they,  "the 
said  Association  relinquished  whatever  right  it  had  to  the  direction  and  regulation 
of  the  members  of  its  own  churches  in  the  new  settiements."  Now  these  remon- 
strants know  perfectly  well,  that  the  General  Association  of  Connecticut  never  had, 
never  claimed,  and  never  exercised  any  right  at  all  "to  the  direction  and  regula- 
tion of  the  members  of  its  own  churches,"  even  in  Connecticut  itself,  much  lesi 
"in  the  new  settlements."  The  "right"  of  counsel  and  advice  is  the  utmost  stretch 
of  their  power  and  authority.  And  this  General  Assembly  might  give  counsel  and 
advice  to  the  churches  of  Connecticut,  and  should  it  be  founded  in  truth,  it  is  just 
as  binding  upon  those  churches  as  the  counsel  of  their  own  General  Association, 
I.  e.  it  comes  divested  entirely  of  all  ecclesiastical  authority. 

odiy.  The  resolution  of  abrog.ition  is  alleged  to  be  "  a  breach  of  faith,  and  wholly 
void  and  of  no  effect."  This  is  begg-ing  ttie  question:  it  goes  on  the  assumption 
that  faith  was  plighted  of  right,  and  tnat  the  treaty,  so  called,  lawfully  constituted; 
which  we  have  supposed  to  be  the  very  point  in  question. 

H* 


66 

No.  4.  "  Because  it  denominates  the  Plan  of  Union  unnatural  as  well  as  uncon- 
stitutional, and  attributes  to  it  nnuch  confusion  and  irregularity."  A  sufficient  an- 
swer to  tills  is  found  in  the  preceding-;  to  whicli  may  be  added  a  single  remark  as 
to  irregularity;  viz.  that  upon  inquliy  at  brethren  who  came  in  upon  this  "  Plan," 
It  appeared  from  their  own  sliowlng%  to  the  abundant  conviction  of  tliis  General 
Assembly,  that  there  were  some  members  on  this  floor,  deliberating  and  voting  on 
the  very  resolutions  in  questions,  who  had  never  adopted  the  Confession  of  Faith 
of  this  church. 

No.  5.  The  fifth  reason  of  protest  is,  that  the  resolution  was  concocted  and 
brought  before  the  Assembly  by  mem.bers  of  this  body  who  had  previously  consulted, 
in  the  form  of  a  convention,  and  memorialized  this  body  on  the  subject:  and  that 
a  ma.jority  of  the  committee  to  whom  the  memorial  was  referred,  were  members  of 
the  convention. 

As  to  the  former,  let  it  suffice  to  say,  that  it  is  the  right  of  every  freeman  and 
the  duty  of  every  Christian,  before  entering  upon  any  great  and  important  mea- 
sure, to  "ponder  the  path  of  his  feet,"  because  "in  the  multitude  of  counsellors 
there  is  safety."  How  the  name  "convention,"  any  more  than  the  name  "  caucus," 
should  utterly  vitiate  their  counsel,  it  may  be  difficult  to  dir,cern. 

As  to  the  latter,  it  may  be  remarked,  that  in  all  deliberative  bodies,  the  principle 
is  settled,  that  large  committees  ought  to  be  selected  in  proportion  to  the  respec- 
tive party  views  that  may  be  entertained  on  tlie  subject  committed.  The  wisdom 
of  the  rule  is  obvious  to  common  sense,  and  the  moderator  of  this  Assembly  simply 
carried  out  the  rule  in  this  case. 

No.  6.  The  sixth  reason  of  protest  is,  "because  the  debate  on  the  subject  was 
arrested  by  an  impatient  call  for  tlie  previous  question.  Tlie  Assembly  was  thus 
forced  to  a  decision  without  any  proper  evidence  of  the  existence  of  the  alleged 
irregularities,  and  before  the  subject  of  errors  in  doctrine  had  been  decided  on  in 
the  Assembly." 

Here  remark,  first,  the  call  for  the  previous  question  was  not  impatient — it  was 
asked  for  and  seconded  by  a  majority  of  the  house,  not  in  the  spirit  of  violence 
and  unjust  oppression  of  the  minority;  nor,  secondly,  there  was  no  unreasonable 
curtailment  of  debate.  The  resolution  was  discussed  two  whole  days — a  period  of 
time  perhaps  more  extended  than  was  ever  before  allotted  or  allowed  by  any  Gen- 
eral Assembly  to  any  single  naked  resolution.  And,  thirdly,  the  brethren  of  the 
minority  occupied  the  floor  more  than  one-half  of  the  time.  And  on  another  reso- 
lution, when  the  discussion  was  arrested  by  the  previous  question,  it  was  just  at  the 
close  of  two  long  speeches  bv  the  minority,  and  after  they  had  consumed  more 
than  five  hours  in  debate;  whereas,  the  majority  had  not  occupied  the  floor  two 
hours  and  a  half.  So  utterly  groundless  is  the  insinuation  that  a  cruel  and  unjust 
use  has  been  made  of  the  pi-evious  question. 

"The  Assembly  was  thus  forced,"  say  the  protestors — "the  Assembly  was 
forced!"  "Forced"  by  whom?  Undoubtedly  by  itself — "forced"  to  do  just  as  it 
wished  to  do — "  forced  to  decide  by  a  strong  vote  on  a  subject  which  had  been 
discussed  two  wV.ole  days!      Strange  coercion  this! ! 

But,  fourthly,  vhe  resolution  in  question  was  passed  before  the  doctrinal  erroi's 
were  condemned.  This  is  true.  But  it  is  also  true,  that  "  tlie  Assembly  was  thus 
forced,"  by  the  opposition  of  tlie  minority,  to  pass  by  the  doctrinal  discussion,  be- 
cause they  could  not  huve  it  in  the  order  recommended  by  their  committee.  Certain 
alleged  errors  were  oft'sred  by  the  minority,  whicli  the}'  refused  to  have  put  in 
their  proper  place;  but  insisted  on  having  first  of  all  a  decision  upon  them  as 
amendments;  which  attempt,  had  it  been  successful,  would  have  precluded  their 
discussion,  except  upon  a  vote  of  reconsideration,  which  requires  two-thirds:  and 
thus  the  majority  would  have  been  completely,  as  to  these  alleged  errors,  in  the 
power  of  the  minority.  Henc°  they  were  laid  on  the  table,  to  be  taken  up  at  a 
future  time.     We  now  proceed  lo 

No.  1.  The  principal  reason  of  protest  is  in  these  words,  viz:  "Because  the 
said  act  is  declared,  in  tlie  resolution  complained  of,  to  have  been  unconsiiiutional." 
In  opposition  to  the  resolution  declaring  the  Plan  of  Union  unconstitutional,  it 
would  appear  most  reasonable  that  tiie  protestors  should  affirm  its  constitutionality; 
i.  e.  that  the  constitution  covers  and  provides  for  it.  This  ground,  liowever,  the 
protestors  have  not  ventured  to  take.  On  the  contrary,  they  explicitly  admit,  that 
the  constitution  makes  no  provision  for  said  act — "  it  is,"  say  they,  "neither  spe- 
cifically provided  for  nor  prohibited  in  the  constitution." 

A  remark  or  two  will  show  that  in  this  tiiey  have  abandoned  their  ground.  For, 
1.  The  constitution  of  the  Presbyterian  Church,  like  that  of  our  national  Union,  is  a 
constitution  of  specific  powers,  granted  by  the  presbyteries,  the  fountains  of  power. 


67 

to  the  synods  and  the  General  Assembly.  2.  No  powers,  not  specifically  g-ranted, 
can  lawfully  be  inferred  and  assumed  by  the  General  Assembly,  but  only  such  as 
are  indispensably  necessary  to  carry  inlo  effect  those  whicii  are  specifically  g-ranted. 
3.  Therefore  the  burden  of  proof  lies  upon  those  who  affirm  that  the  Assembly 
had  power  to  enact  this  "Plan  of  Union."  They  admit  that  there  is  no  specific 
s^rant  of  such  power;  they  are  bound  then  to  prove  that  its  exercise  was  indispen- 
sably necessary,  in  order  to  carry  out  some  other  power  specifically  g'ranted.  Now 
we  search  in  vain  for  any  such  proof  in  the  protest.  There  is,  we  believe,  but  a 
sing-le  effort  of  the  kind.  This  effort  is  made  in  view  of  two  distinct  and  distant 
clauses  in  our  book.  (Form  of  Gov.,  Chap.  XII.  sec.  4.)  The  General  Assembly 
"shall  constitute  the  bond  of  union,  peace,  correspondence,  and  mutual  confidence 
among  all  our  churches."  But  surely  here  is  no  power  granted  to  constitute  a 
bond  of  union  with  churches  of  another  denomination.  It  has  exclusive  reference 
to  "  all  our  churches,"  and  yet  the  protestors  refer  to  this  as  authority  for  forming- 
a  union  with  a  denomination  not  holding  the  same  form  of  government. 

An  equally  unsuccessful  attempt  is  made  upon  Chap.  I.  sec.  2,  where  the  book 
affirms,  that  "any  Christian  church,  or  union  or  association  of  churches,  is  entitled 
to  declare  the  terms  of  admission  into  its  communion."  And  the  protestors  assert 
here,  that  the  General  Assembly  exercised  this  power  in  forming  "  the  Plan  of 
Union,"  and  so  declared  "the  terms  of  admission  into  the  communion  of  the  Pres- 
byterian Church,  proper  to  be  required  in  the  frontier  settlements." 

On  this  statement  two  remarks  seem  requisite;  first,  the  settling  of  the  terms  of 
communion,  v.e  had  thought,  was  the  highest  act  of  power — an  act  beyond  the 
reach  of  the  General  Assembly  itself — an  act  which  the  constitution  itself  provides, 
shall  be  done  only  by  a  majoritv  of  the  presbyteries.  When,  we  ask,  did  the  Pres- 
byterian Church  "declare  the  terms  of  admission  into  its  communion?  Most  as- 
suredly, when  the  constitution  was  adopted.  And  yet  the  protestors  in  this  case 
aver,  that  "the  Plan  of  Union"  is  a  declaration  of  the  terms  of  admission  into  our 
communion!     Could  they  affirm  more  directly  its  imconstitutionahty' 

The  other  remark  is,  that  the  Plan  of  Union  itself  does  not  prescribe  the  terms 
of  admission  into  the  communion  of  the  Presbyterian  Church.  It  prescribes  the 
manner  in  which  Congregationalists  may  remain  out  of  this  Church,  and  yet  exer- 
cise a  controlling  and  governing  influence  over  its  ecclesiastical  judicatories. 

In  the  entire  absence  of  all  proof,  that  tiie  power  exercised  in  forming  the  Plan 
of  Union,  was  indispensably  necessary  to  carry  out  a  power  specifically  granted, 
and  in  the  face  of  their  own  admission,  that  such  power  is  not  specifically  given  to  the 
General  Assem.bly,  we  conclude,  that  the  act  in  question  was  without  any  authority, 
and  must  be  null  and  void. 

The  next  thing  worthy  of  notice,  is  the  criticism  on  the  phrases  "  constitutional 
rules"  and  "  obligatory  on  all  the  churches."  This  plan  of  Union,  it  is  argued, 
is  not  of  the  nature  of  constitutional  rules,  obligatory  on  all  the  churches,  and 
therefore  it  was  not  necessary  that  it  should  have  been  sent  down,  and  have  received 
the  sanction  of  a  majority  of  the  presbyteries.  In  presenting  this  argument,  the 
protestors  admit,  that  if  the  Plan  did  embrace  constitutional  rules,  the  Assembly 
had  no  power  to  enact  it.  The  book,  (Form  of  Gov.,  Chap.  XII.  sec.  6,)  declares, 
"Before  any  overtiu-es  or  regulations  proposed  by  the  Assembly  to  be  established 
as  constitutional  rules,  shall  be  obligatory  on  the  churches,  it  shall  be  necessary  to 
transmit  them  to  all  the  presbyteries,  and  to  receive  the  returns  of  at  least  a  ma- 
jority of  them  in  writing',  approving  thereof." 

This  was  not  done  with  the  Plan;  and  the  only  question  before  us  is,  whether  it 
is  an  alteration  of  the  constitution.  This  Assembly  affirms  that  it  is  a  radical  and 
thorough  change  of  the  entire  system.     On  which  remark — 

1.  Our  book  describes  four  church  courts,  viz.  the  Church  Session,  the  Presby- 
tery, the  Synod,  and  the  General  Assembly.  And  (Chap.  IX.)  it  defines  "the 
church  session  to  consist  of  tiie  pastor  or  pastors,  and  ruling  elders  of  a  particular 
congregation,"  and  entrusts  to  these,  as  permanent  officers,  the  government  of  that 
church.  But  the  Plan  of  Union  pi-ovides  for  no  such  thing.  It  expressly  dis- 
penses with  the  church  session,  and  leaves  the  government  in  the  hands  of  the 
people,  or  of  a  temporary  committee. 

Again,  Chap.  X.  sec.  2,  "  A  presb\  tery  consists  of  all  the  ministers  and  one  ruling 
elder  from  each  congregation,  within  a  certain  district."  But  the  Plan  of  Union 
abrogates  this  provision.  It  does  not  merely  pass  it  by,  but  absolutely  repeals  and 
nullifies  it.  According  to  the  Plan,  a  presbytery  may  have  committee-men  less  or 
more  in  it,  and  may  have  not  a  sing-le  elder.  The  book  farther  states,  that  "  Every 
congregation,  (/.  e.  of  Presbyterians  as  before  described,)  which  has  a  stated  pas- 


G8 

to!',  has  a  right  to  be  represented  by  one  elder;  and  every  colleg-iate  church,  (i.  e. 
a  church  with  two  or  more  ministers,)  by  two  or  more  elders,  in  proportion  to  the 
number  of  pastors."  Here  it  is  perfectly  obvious  that  the  principle  of  equal  re- 
presentation in  the  presbytery  is  aimed  at.  The  same  is  true  of  a  synod,  Chap.  XI. 
"  The  ratio  of  the  representation  of  elders  in  the  synod  is  the  same  as  in  the  pres- 
byteiy."  That  is,  every  congregation,  governed  by  its  own  session,  shall.be  repre- 
sented in  presbytery  and  synod.  But  the  Plan  provides  for  Congregational  com- 
mittee-men, sitting  and  acting  and  voting  in  presbytery,  altgough  it  also  provides  that 
the  congregation  he  represents  shall  not  be  under  the  government  of  the  presby- 
tery, and  no  appeal  can  be  taken  from  it  to  the  presbytery,  even  by  a  minister, 
unless  the  church  ag-ree  to  it.  Thus  the  power  of  government  is  in  the  hands  of 
men  over  whom  that  government  does  not  extend.  It  is  surely  not  necessary  to 
proceed  farther,  to  show  that  the  Plan  is  an  abrogation  of  the  fundamental  princi- 
ples of  the  Presbyterian  system.  And  yet  the  protestors  say,  it  does  not  contain 
constitutional  rules.  No,  verily,  but  it  is  a  mass  of  unconstitutional  usurpations, 
resulting  from  an  overstretch  of  power.  By  the  criticism  of  the  protest,  it  is  de- 
nied that  the  Plan  contains  constitutional  rules;  whereas,  in  the  first  sentence  of 
the  instrument  itself,  it  is  called  "  a  plan  of  government  for  the  churches  in  the 
new  settlements."  And  the  second  sentence  runs  thus:  "  regulations  adopted  by 
the  Genei'al  Assembly,  &c."  Now  \f  regulations  are  not  rules,  language  has  lost 
its  meaning;  and  if  regulations  containing  "a  plan  of  government  for  the  churches," 
are  not  intended  to  be  binding,  and  do  not  touch  the  constitution,  we  are  utterly  at 
a  loss  to  see  how  rules  and  regulations  could  be  expressed.  The  article  in  ques- 
tion has  been  called  "a  Plan  of  Union,"  "a  contract,"  "a  covenant,"  none  of 
which  phrases  is  found  in  tlie  document  itself.  It  declares  itself  to  be  "  regula- 
tions," containing  "a  plan  of  government  for  the  churches."  Now  the  General 
Assembly  never  had  the  power  to  establish  "regulations,"  and  anew  "  plan  of 
government;"  the  plan  is  therefore  null  and  void. 

But,  we  are  told,  these  govermental  regulations  were  not  binding  on  all  the 
churches.  Were  they  not,  indeed!  Have  they  not  given  rise  to  iieterogeneous  bo- 
dies, who  have  come  up.  here  and  bound  us  almost  to  our  undoing?  Have  they  not 
bound  with  green  withes  and  new  cords  this  body,  and  its  Board  of  Education  and 
Missions'  Have  they  not  well  nigh  shorn  us  of  the  locks  of  our  strength,  and  for- 
bidden us  to  go  fortli  into  the  field  of  missionary  conflict  against  the  foes  of  our 
God  and  King?  Surely  these  protestors  will  not  say  the  regulations  are  not  bind- 
ing upon  all  the  churches. 

But,  again,  we  are  told  in  the  protest,  they  are  of  long  standing,  and  have  ac- 
quired the  force  of  common  law.  Does  long  use  constitute  law?  Then  it  would 
follow  that  concubinage  and  polygamy  exist  of  moral  right. 

Again,  we  are  told,  that  this  "plan  of  government"  was  in  existence  twenty 
jears  prior  to  the  last  adoption  of  our  constitution;  and  the  inference  is,  that  there- 
fore it  is  binding-,  and  was  viewed  as  a  contract  to  be  kept  in  good  faith.  The  fair 
inferences,  however,  from  the  fact,  ought  to  be,  that  this  "  plan  of  government" 
was  not  submitted  to  our  presbyteries  by  the  General  Assembly,  and  is  therefore 
not  binding;  and  that  tixis  neglect  was  owing  to  the  circumstance  that  it  was  then 
little  known,  and  its  evils  were  not  all  developed. 

Again,  we  are  told  in  the  protest,  in  reference  to  this  new  "plan  of  government," 
that  its  omission  of  elders,  being-  expressly  provided  for  and  designed,  does  not 
"  vitiate  the  organization — for  then  must  numerous  churches  among-  us,  in  which 
there  are  no  deacons,  be  for  the  same  reason  pronounced  unconstitutional."  And 
we  are  free  to  confess,  that,  if  the  constitution  made  the  deacon  a  ruling  officer  in 
the  church,  he  must  be  found  in  our  ecclesiastical  courts,  and  his  absence  would 
nullify  their  constitutional  existence.  Tliis,  however,  is  not  the  case.  The  dea- 
con's office,  in  the  New  Testament,  and  in  our  book,  is  limited  to  "  serving  tables." 
The  argument,  therefore,  is  lame,  and  shows  its  eastern  birth. 

Again,  the  protest  affirms  that  the  argument  against  this  "  plan  of  government 
for  the  churches,"  because  it  was  not  submitted  to  the  presbyteries,  strikes  equally 
against  the  Theological  Seminaries,  the  Boards  of  Education  and  of  Missions,  and 
also  against  the  admission  of  the  presbyteries  of  tlie  Associate  Reformed  Synod  into 
this  church. 

Let  us  touch  these  in  their  order:  and  first,  the  Theological  Seminaries.  Here, 
again,  if  our  protestors  can  show  that  these  seminaries  are,  in  the  language  of  our 
book,  "  constitutional  rules — obligatory  on  the  churches,"  or,  even  in  the  language 
of  their  favourite  plan,  "regulations,"  and  "a  plan  of  government  for  thecliurches 
in  the  new  settlements,"  we  will  give  up  the  argument,  and  Princeton,  and  the 
Western  Seminaries  and  all.     But  if"  as  every  one  knows,  the  constitutions  and 


69 

reg'ulatlons  of  these  seminaries  have  nothinj?  to  do  with  tiie  g'overnmenl  of  the 
churches,  any  more  than  the  private  reg'ulations  of  a  private  clerg-yman,  for  his 
private  class  of  students,  then  is  this  arg'ument  null  and  void  from  the  beginning. 
As  to  the  power  in  the  Assembly  to  organize  a  seminary,  it  may  be  found  in  the 
book,  (Form  of  Gov.  ch.  xii.  sec.  5,)  under  the  general  power  "  of  superintending 
the  concerns  of  the  whole  church,"  none  of  which  concerns  is  of  more  vital  im- 
portance than  that  of  providing-  an  efficient  ministry:  also  to  them  belongs  the 
power  of  "promoting  charity,  truth  and  holiness,  through  all  the  churches  under 
their  care."  Now,  the  training  of  a  pious  and  orthodox  ministry  is  the  most 
effectual  mode  of  accomplishing  this  work,  and  clearly  places  Theological  Semi- 
naries within  the  Assembly's  power. 

The  same  remarks  are  relevant  and  true  in  reference  to  the  Board  of  Education. 

As  to  the  Board  of  Missions,  "  the  superintending  of  the  concerns  of  the  whole 
church"  cannot  be  carried  out  without  missions;  and  the  Form  of  Government, 
ch.  xviii.  expressly  provides  for  them,  and  grants  to  the  Assembly  power  over  this 
very  business.  It  reads  thus:  "  The  General  Assembly  ma)',  of  their  own  know- 
ledge, send  missions  to  any  part  to  plant  churches,  or  to  supply  vacancies;  and,  for 
this  purpose,  may  direct  any  presbytery  to  ordain  evangelists  or  ministers,  without 
relation  to  any  particular  churches."  How  utterly  unreasonable,  then,  for  the  pro- 
testors to  deny  the  Assembly's  power  to  institute  a  Board  of  Missions. 

As  to  the  Mason  Library  and  the  Associate  Reformed  Churches,  it  may  be  ne- 
cessary only  to  remark,  that  the  two  presbyteries  of  New  York  and  of  Philadelphia — 
the  only  parts  which  came  into  this  Presbyterian  Church — were,  from  their  begin- 
ning, Presbyterian,  according  to  the  strictest  order;  holding  the  same  identical 
Westminster  Confession  of  Faith,  and  Presbyterian  form  of  church  government:  it 
is,  therefore,  difficult  to  perceive  how  the  admission,  by  the  General  Assembly,  of 
sti-ict  and  rigid  Presbyterians  into  their  connexion,  could  be  either  extra  or  uncon- 
stitutional. The  act  of  their  admission  did  not  create  "regulations,"  and  "apian 
of  government  for  the  chui'ches,"  as  did  the  "Plan"  in  question:  it  was  not  "an 
overture  or  regulation  for  establishing  constitutional  rules,  obligatory  on  the 
churches,"  and  therefore  its  transmission  to  all  the  presbyteries  was  not  neces- 
sary. 

Finally,  the  unconstitutionality  of  the  "  plan  of  government  for  the  churches  in 
the  new  settlements,"  abrogated  by  this  resolution,  is  further  demonstrated  by  a 
refei-ence  to  Form  of  Government,  ch.  xii.  sec.  1,  which  says:  "The  General  As- 
sembly is  the  highest  judicatory  of  the  Presbyterian  Church.  It  shall  represent,  in 
one  body,  all  the  particular  churches  of  this  denomination;"  and,  subsequently,  it 
defines  the  ratio  of  representation.  Now,  it  has  been  pi'oved,  on  the  open  floor  of 
this  General  Assembly,  by  the  protestors  themselves,  that  the  Synod  of  the  West- 
ern Reserve,  which  was  formed  on  this  "plan  of  government,"  and  which  con- 
tains one  hundred  and  thirty-nine  particular  churches,  has  only  from  twenty-four  to 
thirty  Presbyterian  churches  in  it;  and  yet  that  synod  claim  a  right  to  twenty  re- 
presentatives here!  Whom  do  these  twenty  represent?  Certainly  not  " particular 
churches  of  this  denomination,"  as  our  book  says.  No,  but  Congregational 
churches,  which,  by  the  terms  of  our  book,  and  the  whole  representative  spirit  of 
our  system,  have  no  riglit  to  be  represented  here,  and  to  judge  and  vote  here,  un-- 
der  a  constitution  which  they  deny  to  be  binding  upon  themselves.  With  no 
greater  impropriety  would  unnaturalized  foreigners  claim  the  right  of  franchise  in 
our  country,  and  of  eligibility  to  office  in  our  legislatures,  our  supreme  judicial 
tribunals,  and  the  executive  departments  of  our  states  and  the  nation.  Besides  it 
has  been  shown  by  themselves  here,  that  this  "  plan  of  government"  has  been  here 
violated,  by  those  claiming  privileges  under  it,  sending  men  to  the  Assembly  who 
had  never  adopted  our  constitution. 

We  therefore  conclude,  that  the  reasoning  of  the  protestors  is  fallacious;  the 
"plan  of  government"  adopted  in  1801  is,  and  ever  has  been  unconstitutional,  and 
therefore  this  General  Assembly  ought  to  declare,  as  it  has  done  in  the  resolution 
protested  against,  that  it  is,  from  the  beginning,  null  and  void. 


Mr.  Murray,  from  the  committee  to  answer  the  Protest  of  the  commissioners 
from  the  Synods  of  Utica,  Geneva  and  Genessee,  against  the  resolution  of  this 
Assembly  declaring  those  synods  to  be  out  of  the  Presbyterian  Church,  made  a  re- 
port. The  report  was  accepted,  read  and  adopted;  and  the  Protest  and  Answer 
were  ordered  to  be  entered  on  the  minutes,  and  are  as  follows,  viz. 


70 


PROTEST. 

Protest  of  the  Commissioners  from  the  Synods  of  Utica,  Geneva  and  Genessee, 
against  the  act  of  the  General  Assembly  of  1837,  declaring'  them  no  longer  consti- 
tuent parts  of  the  Presbyterian  Cliurch. 

Whereas,  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States 
of  America,  now  in  session,  has  declared  the  Synods  of  Utica,  Geneva  and  Genes- 
see  no  longer  constituent  parts  of  the  Presbyterian  Church;  and  whereas  the  com- 
missioners from  the  presbyteries  constituting  those  synods  have  been  deprived  of 
the  right  of  deliberating  and  voting  in  this  house — Therefore, 

The  undersigned,  commissioners  from  the  Synods  of  Utica,  Geneva  and  Genes- 
see,  claim  their  right  to  enter  their  protest  and  remonstrance  against  these  acts, 
for  the  reasons  following,  viz. 

1.  Because  we  deem  such  acts  utterly  unconstitutional  and  unprecedented.  In  our 
Form  of  Government,  (ch.  xii.  sec.  4  and  5,)  the  powers  of  the  General  Assembly  are 
specifically  defined,  but  no  authority  to  exercise  such  summary  process  and  excision 
is  there  granted.  In  our  Book  of  DiscipUne  (ch.  iv.  and  v.)  the  mode  of  procedure 
in  the  trial  and  punishment  of  ministers  of  the  gospel  is  expressly  and  specifically 
prescribed,  yet  no  one  point  of  these  laws  of  discipline  has  been  conformed  to  in 
the  excision  and  virtual  excommunication  of  four  or  five  hundred  ministers,  in  good 
and  regular  standing  in  the  Presbyterian  Church;  no  citations  have  been  issued  or 
served ;  no  charges  have  been  specified  or  preferred;  and  no  opportunity  has  been 
afforded  for  justification  or  defence. 

2.  Because,  when  the  regular  and  constitutional  method  of  trial  was  proposed  to 
this  house,  the  majority  rejected  this  plan,  and  proceeded  without  trial  in  any  form, 
and,  in  our  judgment,  in  the  face  of  all  the  regulations  and  provisions  of  our  con- 
stitution and  rules  of  discipline,  to  declare  the  aforesaid  synods  to  be  "  out  of  the 
ecclesiastical  connexion  of  the  Presbyterian  Church  in  the  United  States,  and  not 
in  form  or  fact  an  integral  portion  of  said  church." 

3.  Because  the  act  of  exclusion  is  professedly  based  on  the  previous  act  of  the 
Assembly  purporting  to  abrogate  the  "  Plan  of  Union"  formed  by  the  Assembly 
of  1801  with  the  Connecticut  Association,  and  acted  upon  for  thirty-six  years; 
whereas,  in  our  estimation,  that  ancient  compact  could  not,  in  good  faith,  be  abro- 
gated without  previous  conference  with  said  Association;  and  even  if  it  could  be 
so  abrogated,  that  abrogation  would  not  destroy  or  invalidate  the  institutions  estab- 
lished, and  the  rights  vested  under  its  operation.  Besides,  the  majority  of  the 
churches  within  the  bounds  of  said  synods  are  strictly  Presbyterian  in  their  struc- 
ture, and  with  few  exceptions,  even  the  small  number  of  churches  originally  Con- 
gregational, were  not  organized  under  the  stipulations  of  the  said  "  Plan  of  Union," 
but  came  in  under  a  different  arrangement,  and  possessed  rights  on  this  subject, 
separate  from,  and  independent  of,  the  "  Plan  of  Union"  of  1801,  secured  to  them 
by  the  Assembly  of  1808,  by  which  the  Synod  of  Albany  was  authorized  to  take 
the  "Middle  Association  under  its  care;  in  virtue  of  which  arrangement,  commis- 
sioners from  said  Association  were  admitted  to  the  floor  of  the  General  Assembly 
up  to  the  period  when  the  Association  was  dissolved,  and  erected  into  two  presby- 
teries, I'egularly  organized  out  of  its  materials. 

4.  Because  all  our  synods  and  presbyteries  have  been  regularly  and  constitution- 
ally formed  and  recognised,  and,  as  such,  have  no  necessary  dependence  whatever 
upon  the  "Plan  of  Union,"  or  any  other  plan  of  accommodation,  and  consequently 
could  not  be  affected  either  by  the  existence  or  abrogation  of  such  plan. 

5.  Because  no  proof  was  exhibited  on  the  floor  of  the  Assembly  that  a  single 
minister  in  these  synods  was  irregularly  inducted  into  the  ofiice  of  the  ministry, 
and  we  know  of  none  such;  and  in  every  presbytery  belonging  to  these  synods 
there  are  churches  formed  on  strict  Presbyterian  principles,  and  in  most  of  our 
presbyteries  such  churches  compose  a  large  majority. 

6.  Because,  while  the  resolution  for  the  exclusion  of  these  synods  was  under 
discussion,  members  were  permitted  to  read  and  refer  to  letters  and  publications 
containing  what  we  consider  unfounded  statements,  and  to  utter  vague  and  injuri- 
ous reports,  and  when  requested,  refuse  to  give  names,  places  and  dates;  and, 
although  the  right  was  insisted  upon,  not  a  single  commissioner  from  any  one  of 
the  three  synods  could  obtain  the  floor  to  address  the  Assembly  on  the  resolution, 
being  put  down  by  the  motion  for  the  previous  question. 

7.  Because  no  notice  whatever  was  given  to  the  synods  in  question  of  the  inten- 
tion to  sever  them  from  the  Presbyterian  Church,  nor  the  least  opportunity  afford- 
ed them  for  vindicating  themselves  from  the  vague  and  informal  charges  uttered 
against  them  on  the  floor  of  the  General  Assembly. 


71 

8.  Because  there  has  been  no  definite  or  authentic  evidence  whatever,  regularly 
before  this  Assembly,  of  the  existence  within  the  bounds  of  the  said  synods  of  those 
errors  in  doctrine,  or  those  gross  irregularities  in  practice,  which  they  are  alleged 
to  be  guilty  of  tolerating. 

9.  Because,  in  our  view,  these  acts  of  the  Assembly  are  not  only  unconstitutional 
and  unwarrantable,  but  tend  to  disturb  the  peace  of  our  churches,  to  injure  our 
ministerial  ciiaracter  and  standing,  and  to  impair  our  usefulness,  and  thus  to  retard 
the  progress  of  truth  and  righteousness  in  one  of  the  most  populous  and  important 
sections  of  our  country. 

10.  Because,  finally,  while  in  the  accompanying  resolutions  it  is  declared  that 
these  acts  are  not  intended  to  affect  our  ministerial  character,  or  to  intei-fere  with 
the  organization  and  peace  of  our  synods  or  presbyteries,  the  last  resolution  in  the 
category  directs  presbyteries,  ministers  and  churches,  to  detach  themselves  from 
the  bodies  with  which  they  are  now  connected,  and  apply  for  admission  into  the 
nearest  presbyteries  of  the  Presbyterian  Church.  Thus  attempting  to  exercise 
authority  over  bodies  already  declared  not  to  be  constituent  portions  of  the  Pres- 
byterian Church  in  the  United  States,  and  to  disturb  their  order  and  peace. 

For  these  reasons  we  do  hereby  enter  our  solemn  protest  and  remonstrance 
against  the  pi-oceedings  in  question. 

John  W.  M'Cullough,  George  Spalding,  S.  Benjamin,  Philip  C.  Hay,  Thomas 
Lounsbury,  Merit  Harmon,  Solomon  Stevens,  Ira  Pettibone,  John  Gridley, 
J.  B.  Richardson,  Marcus  Smith,  Horace  Hunt,  Henry  Brewster,  Samuel 
W.  May,  Fayette  Shipherd,  Washington  Thatcher,  J*  B.  Preston. 

AJfSWER. 

In  reply  to  the  protest  of  the  commissioners  from  the  presbyteries  composing  the 
synods  of  Utica,  Geneva  and  Genessee,  against  the  act  of  this  Assembly,  declaring 
them  no  longer  a  constituent  portion  of  the  Presbyterian  Church,  the  Assembly 
remark : 

1.  That  the  above  named  synods  became  connected  with  the  Presbyterian  Church 
by  the  Plan  of  Union  of  1801,  which  plan  the  Assembly  had  no  constitutional  power 
to  adopt,  and  was  accordingly  null  and  void  from  the  beginning.  So  it  has  been 
declared  by  this  Assembly.  And  as  these  synods  became  connected  with  the  Gen- 
eral Assembly  by  an  unconstitutional  Plan  of  Union,  they  never  have  been  a  con- 
stitutional part  of  it.     And  this  is  all  the  act  in  reference  to  them  declares. 

Nor  is  there,  as  the  protestants  declare,  an  excommunication  of  four  or  five  hun- 
dred ministers.  The  act  itself  asserts  the  contrary.  As  there  was  no  judicial  pro- 
cess instituted  against  them,  no  citations  were  necessary.  Without  impeaching  the 
charact(jr  or  standing  of  the  brethren  composing  these  synods,  this  Assembly,  by  a 
legislative  act,  merely  declares  them,  in  consequence  of  the  abrogation  of  the  Plan 
of  Union  of  1801,  no  longer  a  constituent  part  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States. 

2.  When  resolutions  were  before  the  house  for  the  citation  of  judicatures  to  the 
bar  of  the  next  Assembl)',  charged  by  common  fame  with  sanctioning  errors  in 
doctrine  and  irregularities  in  practice,  the  protestants  unanimously  opposed  them. 
And  now  they  complain  that  they  were  not  thus  cited. 

3.  The  compact  of  the  Assembly  of  1808,  with  the  Synod  of  Albany,  in  reference 
to  the  "Middle  Association,"  is  as  unconstitutional  as  the  Plan  of  Union  of  1801. 
And  the  fact  stated  by  the  protestants,  that  two  large  presbyteries  were  made  out 
of  that  Middle  Association,  and  that  commissioners  from  said  Association  were  ad- 
mitted to  the  floor  of  the  Assembly  as  members,  only  proves  the  constitutionality 
of  the  act  against  which  they  complain.  So  that  their  third  specification  of  griev- 
ance contains  its  own  answer. 

4.  The  contrary  of  their  fourth  specification  of  grievances  is  believed  and  proved 
to  be  the  fact.  The  great  majority  of  the  churches  of  these  synods  were  formerly 
Congregational;  and  the  great  m.ijority  of  those  of  them  now  Presbyterian,  retain 
much  of  their  Congregational  peculiarities  and  prejudices.  They  almost  unani- 
mously prefer  the  institutions  of  the  ciiurch  they  have  abandoned,  to  those  of  the 
church  of  their  adoption.  They  are  in  form  Presbyterian,  but  in  prejudice  and  in 
fact  Congregational. 

5.  As  no  charge  was  brought  against  any  minister  or  ministers,  that  they  were 
irregularly  inducted  into  the  office  of  the  ministry,  no  proof  was  needed  to  sustain 
it.  The  charge  is,  not  that  they  were  irregularly  inducted  into  the  Christian 
ministry,  but  that  they  were  unconstitutionally  connected  with  the  Presbyterian 
Church. 

6.  The  papers  complained  of  were  official  papers,  published  over  the  siernatures 


72 

of  stated  clerks  of  presbyteries,  and  committees  of  synods  and  associations.  Tlie 
resolutions  complained  of  were  thirty-six  hours  under  debate,  and  more  than  one 
half  of  the  time  was  occupied  by  those  opposed  to  their  adoption.  A  brother,  in 
the  midst  of  an  argument,  yielded  the  floor  that  the  protestants  might  make  what 
statements  they  thought  proper:  but  none  were  made.  The  previous  question  was 
once  withdrawn  for  tlie  same  purpose;  and  they  were  yet  silent.  And  yet  they 
complain  because  no  time  was  given — that  they  were  put  down  by  the  previous 
question ! ! 

7.  This  is  founded  on  the  supposition,  that  tliey  were  constitutional  parts  of  the 
Presbyterian  Church,  and  that  the  act  by  which  they  are  declared  to  be  no  longer 
a  constitutional  part  of  it,  is  not  a  legislative  but  a  judicial  act.  Both  of  which  sup- 
positions a:e  incorrect. 

8.  The  evidence  of  great  errors  in  doctrine  and  gross  irregularities  in  practice, 
prevailing  to  an  alarming  extent  within  the  bounds  of  said  synods,  and  if  not  coun- 
tenanced, certainly  unsuppressed  by  them,  is  before  the  church  and  the  world. 

9.  This  is  a  mere  expression  of  opinion  by  the  protestants,  to  which,  in  this  free 
country,  every  man  has  an  undoubted  right. 

10.  In  the  resolution  complained  of,  this  Assembly  merely  tenders  its  advice  to 
the  ministers  and  churches  sincerely  Presbyterian,  and  points  them  to  the  consti- 
tutional door  by  which  tliey  may  speedily  return  to  the  ciuircli  of  their  preference 
and  affection. 

Thursday  Morning,  June  8th. — Jlr.  Todd,  from  the  committee  to  answer  the  pro- 
test against  the  resolutions  of  this  Assembly,  respecting-  the  citations,  of  inferior 
judicatories,  and  also  against  the  resolution  of  tliis  Assembly,  declaring  the  Synod 
of  the  Western  Reserve  not  to  be  a  part  of  tl\e  Presbyterian  Church,  made  a  report. 
The  report  was  read,  accepted,  and  adopted;  and  it  was  ordered  that  the  Protest 
and  Answer  be  entered  on  the  minutes,  as  follows,  viz. 

PnOTEST. 

The  undersigned,  members  of  the  General  Assembly,  beg  leave,  respectfully,  to 
enter  their  solemn  protest  to  the  act  of  the  Assembly  adopting  the  three  resolutions 
relative  to  the  citation  of  inferior  judicatories,  and  likewise  to  the  resolution  of  the 
Assembly,  declaring  the  Synod  of  the  Western  Reserve  not  a  part  of  the  Presby- 
terian Church.     In  support  of  our  protest  we  subjoin  the  following  reasons: 

1.  We  object  to  the  mode  of  investigation  adopted,  in  the  first  named  resolutions, 
by  the  Assembly.  They  resolve,  in  the  first  place,  "  to  cite  to  the  bar  of  the  next 
Assembly  such  inferior  judicatories  as  are  charged,  by  common  fame,  with  irregu- 
larities." The  first  step,  in  our  estimation,  should  have  been  to  appoint  a  cogimlttee 
to  inquire  into  the  nature  of  the  various  rumours  which  are  said  to  be  afloat,  and  to 
'/eport  to  the  Assembly  whether  there  was  any  cause  for  citation. 

2.  The  committee  was  empowered,  by  the  second  resolution,  merely  to  ascertain 
what  judicatories  were  charged  by  common  fame;  whereas,  they  ought  to  have 
been  instructed,  in  this  stage  of  the  investigation,  to  ascertain  whether  there  was 
or  was  not  ^ny  foundation  for  existing-  rumours.  It  seems  to  be  made  imperative, 
by  the  resolution,  that  all  judicatories  shall  be  reported  by  that  committee,  for  cita- 
tion, against  which  any  unfavourable  rumours  are  In  circulation. 

3.  The  majority  of  the  committee  recommending-  these  measures  were  members 
of  the  convention  which  originated  all  this  business,  and  brought  it  into  the  As- 
sembly. They  act  upon  it  first  in  the  convention,  then  in  the  Assembly;  after  that 
In  the  committee,  and  then  are  to  pass  a  final  vote  in  the  Assembly.  They  petition 
themselves,  consider  their  own  petition,  and  then  grant  to  themselves  what  they  them- 
selves ask. 

4.  The  investigation  ought  to  have  been  expressly  limited  to  synods,  because 
the  book  of  discipline  makes  provision  for  the  Assembly,  in  certain  cases,  to  cite 
synods,  but  no  other  judicatories.     (See  Gen.  Rev.  and  Con.  VI.) 

5.  The  resolution,  to  deprive  the  judicatories  to  be  cited  of  a  seat  in  the  next 
Assembly,  is,  in  every  respect,  unconstitutional  and  void,  ^'ab  initio."  This  As- 
sembly has  no  power,  by  their  vote,  to  deprive  commissioners  duly  elected  from  a 
seat  in  the  next  Assembly,  because  that  Assembly  has  the  exclusive  right  of  judg- 
ing of  the  qualifications  of  its  own  members,  and  because  to  do  so  would  be  to  in- 
flict a  penalty  before  trial  or  investigation.  Besides,  the  Assembly  has  power  to 
cite  synods  only;  and  presbyteries,  and  not  synods,  are  represented  on  this  floor. 
To  deprive  every  presbytery  in  a  whole  synod  of  a  seat  in  the  General  Assembly, 
because  a  synod,  in  its  collective  capacity,  may  have  been  irregular,  is  unprece- 
dented in  ecclesiastical  proceedings. 


73 

6.  The  provision  in  the  book  of  discipline,  referred  to  in  the  third  resolution,  to 
justify  the  exclusion  of  members  from  seats  in  the  next  Assembly,  has  no  applica- 
tion in  this  case.  It  applies  only  to  a  minister  of  the  g-ospel  when  on  trial  before 
Ills  own  Presbytery,  and  cannot  justify  the  unconstitutional  bearing-  of  this  resolu- 
tion. Besides,  the  book  of  discipline  expressly  provides  for  those  cases  in  which 
an  inferior  judicatory  is  to  be  excluded  from  a  seat  in  the  superior  judicatory;  and 
these  cases  are  trials  of  appeals  and  complaints  in  which  they  are  interested. 

7.  The  resolution  declaring-  the  Synod  of  the  Western  Reserve  not  a  part  of  the 
Presbyterian  Church  of  the  United  States,  we  deem  unconstitutional  in  its  charac- 
ter, and  oppressive  in  its  operation  upon  those  who  are  immediately  affected  by  it. 
AVe  think  those  brethren  who  have  been  excluded  from  this  house,  by  tliis  resolu- 
tion, have  a  right  to  declare  it  a  dismemberment  of  the  Presbyterian  Church.  They 
further  protest  against  this  resolution,  on  account  of  the  time  and  manner  in  which 
it  has  been  introduced  and  adopted.  While  the  whole  subject  respecting  inferior 
judicatories  wa.s  in  the  hands  of  a  committee,  and  before  receiving  any  report  from 
that  committee;  while  citation,  according  to  the  provisions  of  the  book,  was  pend- 
ing; and  when  the  subject  could  not  liave  been  regularly  reached  but  by  a  vote  of 
reconsideration,  the  Assembly  take  the  whole  matter  into  their  own  hands,  and 
disown  a  whole  synod,  containing  eight  presbyteries,  without  any  regular  and  con- 
stitutional steps  in  the  case.  The  abrogation  of  the  Flan  of  Union,  in  the  opinion 
of  the  undersigned,  cannot  justify  this  act.  The  Plan  was  a  compact,  and  the 
Assembly  was  a.  parly  to  that  compact;  and  it  is  not  in  the  power  of  that  party  to 
destroy  the  rights  which  have  vested  under  that  compact. 

We  add,  this  synod  was  constituted  by  the  General  Assembly,  in  1825,  out  of 
three  presbyteries  then  forming  part  of  the  Synod  of  Pittsburg-,  which  presbyteries 
were  in  good,  regular,  and  constitutional  standing  in  the  Presbyterian  Church,  and 
had  been  constituent  parts  of  that  synod,  and  had  been  represented  by  their  com- 
missioners on  tlie  floor  of  this  house.  They  have,  since  their  constitution,  organized 
Jive  presbyteries,  all  of  wiiich  have  been  fully  recognized  by  this  Assembly.  The 
synod  has  regularly  presented  its  records  to  this  house,  from  time  to  time,  and  the 
Assembly  have  acted  thereon.  The  Plan  of  Union  had  no  reference  to  the  organ- 
ization of  presbyteries,  and  no  effect  thereon.  It  made  no  alteration  in  the  mode 
of  constituting  them;  and  the  committee  of  the  churches,  not  being  entitled  to  seats 
in  the  synods  (when  these  presbyteries  were  constituted,)  could  not  control  the 
same.  The  authority  of  this  synod,  and  of  the  presbyteries  constituted  by  it,  was 
not  derived  from  any  provision  in  the  Plan  of  Union,  nor  could  their  existence  or 
operation  be  affected  by  that  plan.  The  only  reason  assigned  by  the  resolution  for 
thus  annulling  the  organization  of  eight  presbyteries,  is  stated  to  be  the  operation 
of  the  abrogating  resolution.  Now,  it  is  plain  to  the  subscribers,  and,  they  believe, 
palpably  evident,  that  the  Plan  of  Union,  either  in  its  existence  or  abrogation,  could 
have  no  effect  upon  the  formation  or  existence  of  a  presbytery  or  sifnod.  The  only 
effect  of  that  Plan  was  the  formation  of  churches  of  a  peculiar  character,  which 
might  be  admitted  to  the  presbyteries  according  to  the  special  provisions  of  that 
Plan;  and  if  the  act  of  abrogation  had  any  eflf'ect,  passed  as  it  was  by  the  same  body 
which  made  the  original  compact,  it  could  only  affect  the  churches  now  existing 
under  the  peculiar  formation  recommended  in  that  plan,  and  could  not,  without 
plain  absurdity,  be  construed  to  affect  Presbyterian  ministers  and  strictly  Presbyte- 
rian churches. 

Lastly.  We  protest  against  the  exercise  of  the  power  of  closing  the  debate  upon 
both  of  the  foregoing  questions,  by  the  majority,  insisting  as  they  did  upon  the 
previous  question. 

Philip  C.  Hay,  (in  relation  to  tlie  three  first  mentioned  resolutions,  being" 
out  of  the  house  when  the  last  was  passed;)  N  S.  S.  Beman,  Calvin  Cutler, 
T.  D.  Southworth,  Edwin  Holt,  G.  Hayden,  U.  O.  Griswold,  D.  Sayre, 
.John  Cone,  Bliss  Burnap,  Marcus  Sniitli,  Horace  Hunt,  Ira  Pettibone, 
Thomas  Williams,  William  Roy,  Thomas  Lounsbury,  John  Gridley,  Abner 
Hollister,  Washington  Thatcher,  11.  S.  Walbridge,  John  M.  Rowland, 
Silas  West,  George  E.  Delavan,  George  Spalding,  S.  Benjamin,  Solomon 
Stevens,  Henry  Brewster,  James  B.  Shaw,  Felix  Trac)',  J.  B.  Richardson, 
Timothy  Stillman,  John  B.  Preston,  James  R.  Gibson,  N.  E.  Jolnison, 
Obadiah  Woodruff,  Adam  Miller,  William  Jessup,  John  L.  Grant,  Ambrose 
White,  Wilfred  Hall,  E.  W.  Gilbert,  Alexander  Campbell,  John  S.  Martin, 
Alanson  Saunders,  Svilliam  Fuller,  John  Seward,  Dudley  Williams,  A. 
Peters,  Rufus  Nutting,  Eldad  Barber,  George  Duffield,  James  Boyd,  Ben- 
jamin Woodbury,  Isaac  J.  Rice,  Henry  Brown,  Joseph  H.  Breck,   H. 

7 


74 

Kingsbury,  Varnum  Noyes,  John  P.  Cleaveland,  Robert  Stuart,  P.  W. 
Warriner,  Ira  M.  Wead,  Samuel  Reed,  Bennet  Roberts,  Ephraim  Cutler, 
Benjamin  Dolbear,  Baxter  Dickinson,  James  W.  Phillips,  Burr  Bradley, 
John  Crawford,  David  B.  Ayres,  Nathaniel  C.  Clark,  Enoch  King'sbury, 
Nahum  Gould,  F.  W.  Graves,  Jacob  Gideon,  George  Painter,  Thomas 
Brown,  John  W.  Cunningham,  Robert  Aikman,  Samuel  W.  May,  E.  Sey- 
mour, WiUiam  C.  Wisner,  James  A.  Carnahan,  Zina  Whittlesey,  James  I. 
Ostrom,  Fayette  Shipherd,  Merit  Harmon,  R.  Campbell,  Thos.  M'Auley, 
H.  Bushnell,  E.  Cheever,  David  Whitney,  Thomas  Cleland,  F.  A.  M'Cor- 
kle,  John  Leonard,  John  M'Sween,  Jacob  Faris,  J.  W.  M'Cullough,  H.  H. 
Hays,  Ammi  Doubleday. 

ATfSWER. 

The  committee  to  whom  was  referred  the  protest  of  sundry  members  of  this 
General  Assembly,  against  the  act  adopting  the  three  resolutions  relative  to  the 
citation  of  inferior  judicatories,  and  likewise  to  the  resolution  of  the  Assembly 
declaring  the  Synod  of  ike  TVestern  Reserve  not  a  part  of  the  Presbyterian  Church, 
have  had  the  same  under  consideration,  and  would  respectfully  report  the  follow- 
ing answer  to  said  protest. 

The  signers  to  the  protest  object  to  the  mode  of  investigation  adopted  in  the 
first  named  resolutions,  and  contend  that  the  first  step  should  have  been  to  appoint 
a  committee  to  inquire  into  the  nature  of  the  rumours  which  are  said  to  be  afloat, 
and  to  report  to  tlie  Assembly  whether  there  was  any  cause  for  citation.  The 
resolutions  as  to  citation  refer  to  supposed  cases,  and  the  committee  were  to  cite, 
and  designate,  and  report  to  the  Assembly  for  its  approval  and  further  action.  In 
this  aspect  of  the  case,  the  objections  urged  lose  their  force.  No  wrong  was  done 
to  any  presbytery,  nor  any  irregular  process  authorized,  nor,  indeed,  any  final  step 
to  be  taken  without  action  in  the  General  Assembly.  Upon  the  report  of  the  com- 
mittee to  cite,  the  iiouse  would  decide  upon  the  foundation  for  existing  irregulari- 
ties, and  a  wholesome  control  as  to  the  details  of  the  whole  subject  would  be  exer- 
cised by  the  Assembly  before  tlie  final  disposition  of  the  several  cases;  and  the 
signers  of  the  protest  themselves  affirm,  In  a  subsequent  part  of  the  paper,  and 
with  the  design  of  sustaining  another  position,  that  the  citation  contemplated  by 
these  resolutions  was  according  to  the  book.  Your  committee  deem  it,  therefore, 
unnecessary  to  dwell  upon  this  part  of  the  subject,  it  being  evident,  from  the 
nature  of  the  resolutions  and  the  admission  of  the  signers  to  the  protest,  that  the 
steps  contemplated  by  these  resolutions  were  according  to  the  book,  and  within 
the  constitutional  power  of  this  Assembly. 

It  is  difficult  to  conceive  how  this  regular  constitutional  action  could  be  Impaired 
or  destroyed  by  the  suggestion,  whether  true  or  untrue,  that  the  committee  recom- 
mending these  measures  were  members  of  the  convention;  that  they  acted  upon  it 
first  in  the  convention,  then  in  the  Assembly,  after  that  In  the  committee,  and  then 
were  to  pass  a  final  vote  in  the  Assembly.  It  Is  even  gravely  charged  as  a  ground 
of  objection,  that  "they  petition  themselves,  consider  their  own  petition,  and  then 
grant  to  themselves  what  they  themselves  ask."  It  Is  a  sufficient  answer  to  this  objec- 
tion, that  a  majority  of  the  duly  constituted  members  of  this  Assembly  adopted  and 
sanctioned  the  incipient  as  well  as  final  steps  In  the  case;  and  the  acts  of  the  As- 
sembly are  valid,  until  it  be  shown  that  the  provisions  of  the  constitution  have  been 
invaded,  or  that  the  majority  consisted  of  persons  who  were  not  duly  qualified 
commissioners.  The  fact  of  a  majority  or  any  number  of  members  of  the  Assembly 
having  been  members  of  the  convention,  cannot  invalidate  the  acts  of  the  Assembly. 
The  right  of  petition  is  guaranteed  by  every  well-regulated  government,  whether 
civil,  political,  or  ecclesiastical,  and  it  is  just  as  competent  for  any  number  of  the 
individuals  composing  the  Assembly  to  meet  publicly  for  consultation,  as  it  would 
be  for  any  number  to  meet  privately  for  the  same  object.  In  neither  case  could 
the  action  of  those  members  in  the  Assembly  be  supposed  to  be  purified  or  conta- 
minated by  such  consultations. 

The  investigation  contemplated  by  these  resolutions  was  designed  to  apply  to 
inferior  judicatories,  which  Includes  synods,  and  may  not  necessarily  mean  presby- 
teries; the  specification  of  such  inferior  judicatory  was  to  be  reported  by  the  com- 
mittee, and  the  fourth  objection,  as  urged  by  the  signers  of  the  protest,  could  only 
be  appropriate  when  a  presbytery  should  be  cited.  Any  supposed  restriction  of 
the  right  of  the  General  Assembly  to  cite  any  other  inferior  judicatories  but  synods, 
(which  Is  regarded  by  the  signers  of  the  protest  as  being  derived  from  the  sixth 
part  of  the  section  of  general  review  and  control,)  Is  explained  by  the  comprehen- 


75 

sive  character  of  the  fifth  part,  which  assigns  to  the  superior  judicatory  power  to 
"examine,  deliberate,  and  judg'e  in  the  whole  matter,  as  completely  as  if  it  had 
been  recorded,  and  thus  brought  up  by  the  review  of  the  records."  The  General 
Assembly,  by  its  very  constitution,  is  regarded  as  having  a  general  control  of  the 
whole  church,  and  in  its  conservative  character  shall  superintend  all  of  its  con- 
cerns. It  is  believed  that  the  initiatory  steps  contemplated  by  the  resolutions 
authorizing  a  committee  to  designate  inferior  judicatories  who  may  have  been 
guilty  of  irregularities,  to  cite  them,  and  report  as  soon  as  practicable  to  this  As- 
sembly, do  not  infringe  the  spirit  or  letter  of  the  inherent  powers  of  the  General 
Assembly.  And  the  great  principles  of  analogy  would  obviously  dictate  that  the 
members  of  the  inferior  judicatories,  upon  whom  these  preparatory  measures  are 
supposed  to  operate,  should  not  be  permitted  to  sit  in  the  next  General  Assembly 
until  their  cases  should  be  decided.  If  there  be  any  sound  principle  contained  in 
the  clause,  and  the  uniform  practice  which  excludes  an  interested  judicatory  from 
voting,  that  principle  and  that  practice  should  be  applied  to  tlie  members  of  sucii 
inferior  judicatories  as  may  be  affected  by  these  resolutions.  This  view  of  the 
subject  is  exceedingly  strengthened  by  the  fact,  that  express  power  is  vested  in 
our  judicatories  to  exclude  at  will  their  own  members  when  on  trial  before  them. 

The  other  subject  on  which  the  signers  to  the  protest  present  their  objections, 
is  ®ne  of  vital  importance,  as  involving  in  an  eminent  degree,  the  character  of 
nearly  all  the  proceedings  of  this  General  Assembly.  It  is  represented  by  them  to 
be  unconstitutional  and  oppressive,  and  might  be  regarded  as  a  dismemberment  of 
the  Presbyterian  Church. 

The  fallacy  of  these  opinions  will  appear,  upon  a  just  consideration  of  the  real 
question  at  issue.  The  Synod  of  the  Western  Reserve  was  declared  by  that  reso- 
lution to  be  no  longer  a  part  of  the  Presbyterian  Church  ;  and  on  the  supposition, 
which  can  be  confidently  established,  that  this  General  Assembly  has  a  right  to 
declare  who  shall  or  who  shall  not  compose  its  members,  it  follows,  as  a  necessary 
consequence,  that  this  declaration  of  that  synod  not  being  a  part  of  the  church,  no 
more  dismembers  the  church  than  the  declaration,  by  Congress  or  any  legislature, 
that  certain  persons  pronounced  not  duly  elected,  would  have  the  effect  to  dissolve 
that  body,  or  vitiate  its  acts.  The  Plan  of  Union  of  1801,  was  unconstitutional, 
and  therefore  void,  ab  initio,  and  only  lived  just  so  long  as  the  discretion  of  the 
General  Assembly  permitted.  It  had  no  constitutional  existence,  and  was  subject 
at  any  time  to  be  pronounced  as  dead.  It  was  manifestly  a  gross  interpolation 
upon  the  constitution,  and  was  not  even  adopted  in  the  mode  pointed  out  by  the 
constitution.  It  was  not  only  voidable  by  any  subsequent  act  of  the  General  As- 
sembly, but  was  void  from  the  beginning,  because  without  constitutional  authority, 
and  professing  to  bring  into  our  judicatories  persons  who  were  not  duly  qualified 
members.  The  act  of  1801  was  not  only  unconstitutional,  but  the  effect  of  its 
operation  was  to  make  inroads  upon  the  great  distinctive  features  both  of  doctrine 
and  discipline  in  the  Presbyterian  Church ;  and  whether  reference  be  had  to  its 
nullity  or  its  pernicious  influence,  no  principle  is  more  firmly  established  than  that 
an  unconstitutional  law  can  give  no  rights,  and  that,  ipso  facto,  whatever  may  be 
attempted  to  be  built  upon  it,  must  fall  with  the  sandy  foundation  on  which  it 
rests.  The  Synod  of  the  Western  Reserve  was  the  result  of  the  operation  of  the 
act  of  1801,  in  virtue  and  by  consequence  of  which  a  body  of  churches,  presbyte- 
ries, and  synods,  radically  anti-Presbyterian  in  doctrine  and  order,  have  been  inti-o- 
duced  into  our  connexion,  in  express  violation  of  many  particular  provisions  of  our 
constitution  and  of  the  entire  spirit  of  our  system;  and,  therefore,  it  never  was  a 
legitimate  part  of  the  Presbyterian  Church.  Its  abrogation  destroyed  no  rights, 
because  none  existed  under  it ;  and  every  lover  of  the  purity  and  peace  of  the 
church  will  contemplate  with  satisfaction  the  moral  courage  and  Christian  fortitude 
which,  under  God,  has  aroused  the  friends  of  truth  to  the  great  work  of  reforma- 
tion. 

It  will  devolve  more  naturally  on  another  committee  to  prove  the  Plan  of  Union 
in  question  to  have  been  utterly  repugnant  to  the  constitution,  as  that  part  of  the 
protest  to  which  we  are  replying  is  rather  against  the  consequences  flowing  from 
that  declaration  by  the  Assembly,  than  against  the  legality  and  truth  of  the  decla- 
ration  itself  But,  supposing  the  Assembly  to  have  had  good  reasons  for  declaring 
the  Synod  of  the  Western  Reserve  not  to  be  a  Presbyterian  synod  at  all,  surely 
there  could  no  longer  be  any  reason  why  delegates  from  presbyteries  in  that  synod 
should  have  seats  in  the  Assembly.  And  whether  the  Assembly  came  wisely  or 
otherwise  to  the  decision  as  to  the  true  posture  of  that  synod,  such  a  decision, 
when  rendered,  is  thenceforward  conclusive  on  all  the  parties,  till  changed  by  the 


76 

Assembly  itself;  and  mere  expressions  of  opinion,  without  any  thing*  amounting" 
even  to  a  show  of  reason,  on  the  part  of  those  who  protest,  are  sufficiently  an- 
swered by  a  corresponding  expression  on  the  part  of  the  Assembly — that  it  has 
had  abundant  reason  to  be  convinced  that  its  acts  in  this  behalf  were  not  only  fully 
warranted  by  its  constitutional  powers,  and  amply  justified  by  abundant  evidence — 
but  thiit  they  were  absolutely  necessary  to  save  the  church  from  impending'  ruin. 
As  many  of  the  declarations  of  the  signers  of  the  protest,  in  this  part  of  their  case, 
as  well  as  in  the  preceding  portions  of  it,  are  deprived  of  all  their  force  by  action 
of  the  Assembly  subsequent  to  the  writing  of  their  protest,  we  need  only  refer  to 
the  resolutions  in  the  case  of  the  Synods  of  Utica,  Geneva,  and  Genessee,  for  an 
answer  to  much  of  their  protest  in  regard  to  that  of  the  Synod  of  the  Western 
Reserve. 

And  it  seems  that  their  whole  procedure  shows  clearly  how  unreasonable,  incon- 
venient, and  impracticable  it  is  to  suitably  protest  in  regard  to  business  which  has 
not  yet  assumed  its  final  shape,  and  to  attempt  to  fasten  on  this  Assembly  conclu- 
sions, which  the  persons  protesting  contradict  themselves  to  reach,  and  which,  if 
they  had  exercised  only  a  small  degree  of  patience,  would  have  been  presented  to 
them  in  a  complete,  and  therefore  somewhat  different  aspect  from  the  regular  and 
necessary  progress  of  the  business  of  the  house. 

To  the  objection  which  is  urged  against  the  exercise  of  the  power  to  close  the 
debate  on  this  question,  it  is  a  sufficient  answer,  that  the  General  Assembly  has  the 
power  to  prescribe  its  own  rules  for  the  transaction  of  business  ;  that  the  rule  in 
relation  to  the  previous  question  was  adopted  by  a  majority,  a  rule  in  conformity 
to  that  observed  by  Congress,  and  in  its  application  by  this  General  Assembly 
wrought  no  injustice  to  the  minority,  as  a  full  discussion  was  allowed,  in  which 
that  minority  occupied  more  than  half  of  the  time. 


Thursday  afternoon,  June  8th. — Dr.  Beman  introduced  the  following  protest, 
which  was  read,  accepted,  and  ordered  to  be  entered  on  the  minutes,  namely : 

PROTEST. 

The  undersigned,  members  of  the  General  Assembly,  enter  their  solemn  and 
decided  protest  against  the  act  of  the  Assembly,  by  which  the  Synods  of  Utica, 
Geneva,  and  Genessee,  have  been  declared  to  be  out  of  the  ecclesiastical  connexion 
of  the  Presbyterian  Church. 

For  this  protest,  we  assign,  before  the  church  and  its  great  Head,  the  following 
reasons. 

1.  The  resolutions  of  the  Assembly  declare  the  "Plan  of  Union,"  with  the 
General  Association  of  Connecticut,  to  have  been  unconstitutional ;  and  assign  the 
abrogation  of  that  Plan  as  a  leading  reason  for  declaring  these  synods  out  of  our 
connexion — whereas,  in  the  estimation  of  the  undersigned,  not  a  single  provision 
of  the  constitution  was  violated  by  that  Plan. 

2.  It  appears  to  the  undersigned,  that  even  if  the  Plan  of  Union  had  been  un- 
constitutioiial,  that  its  abrogation  could  not  annul  the  solemn  compacts  which  were 
ratified  bj'  this  Plan  between  the  General  Assembly  and  the  General  Association, 
as  contracting  parties  in  that  Plan. 

3.  Least  of  all,  in  the  estimation  of  the  undersigned,  could  the  abrogation  of  the 
Plan  of  Union  interfere  with  the  constitutional  existence  of  whole  synods — for 
such  synods  could  not,  in  the  nature  of  the  case,  be  ^^  formed  and  attached  to  this 
body,  under  and  in  execution  of  said  Flan,"  as  declared  in  the  resolutions.  The 
only  connexicn  which  synods  could  have  with  this  Plan,  was  to  permit  churches 
of  a  peculiar  organization  to  be  attached  to  the  presbyteries  under  their  care — and 
this  was  done  in  the  Synods  of  Utica,  Geneva,  and  Genessee,  by  successive  acts  of 
the  Assembly. 

4.  The  resolutions  charge  these  synods  with  "gross  disorders,"  in  direct  viola- 
tion of  the  principles  of  the  constitution  and  the  rules  adopted  by  the  Assembly. 

5.  The  resolutions  assert,  '<  tliat  even  the  Plan  of  Union  itself  was  never  con- 
sistently carried  into  effect  by  those  professing  to  act  under  it,"  and  that  this  fact 
was  "made  clear  to  us,"  while  not  a  particle  of  evidence  to  this  effect  was  ex- 
hibited. 

6.  The  charge  of  heresy  is  strongly  implied,  and  that  too  in  no  doubtful  terms, 
in  the  fourth  resolution,  against  the  great  body  of  churches  and  ministers  in  these 


77 

three  synods.  Not  more  than  "one  or  two  presbyteries,"  of  all  the  number  em- 
braced in  these  synods,  are  represented  as  "strictly  Presbyterian  in  doctrine  and 
order."  This  virtual  charge  of  lieresy  against  the  remainder,  is  a  violation  of  the 
constitution,  which  is  intended  to  protect  ministerial  character.  (Book  of  Dis- 
cipline.) 

7.  The  whole  matter  embraced  in  these  resolutions,  was,  by  a  vote  of  the  As- 
sembly, in  the  hands  of  a  committee ;  and  the  synods  were  declared  out  of  our 
connexion,  before  the  committee  had  reported  to  the  house. 

8.  The  undersigned  deem  this  acta  dismemberment  of  the  Presbyterian  Church, 
and  adapted  in  its  character  and  effects,  to  produce  disorganization  and  ruin  in 
our  beloved  Zlon. 

9.  We  add  that  these  synods  were  regularly  constituted  before  the  adoption  of 
the  constitution  of  the  Presbyterian  Church,  in  its  present  form,  and  their  pres- 
byteries joined  in  its  adoption  ;  and  these  synods  have  contributed  largely  to  the 
funds  of  the  Presbyterian  Church. 

10.  The  Assembly  admitted,  while  the  resolutions  were  under  discussion,  various 
accusations  to  be  stated  against  these  synods,  while  they  were  not  on  trial,  and 
could,  in  the  nature  of  the  case,  have  no  opportunity  for  defence. 

Lastly.  We  further  protest  against  this  act,  because  it  was  done  after  one  whole 
synod  had  been  unconstitutionally  declared  out  of  our  church,  and  were  deprived 
of  a  vote  in  the  case  ;  and  this  act  must  consequently  be  null  and  void. 

David  Porter,  Nathan  S.  S.  Beman,  William  Jessup,  James  W.  Phillips,  John 
P.  Cleaveland,  Baxter  Dickinson,  Thomas  Brown,  E.  W.  Gilbert,  F.  W. 
Graves,  Robert  Stuart,  Absalom  Peters,  Jonathan  Cone,  Burr  Bradley, 
Samuel  W.  May,  E.  Seymour,  H.  Bushnell,  Solomon  Stevens,  Daniel 
Sayre,  Adam  Miller,  John  Crawford,  J.  W.  Cunningham,  N.  E.  Johnson, 
John  Leonard,  Nahum  Gould,  Wilfred  Hall,  Nathaniel  C.  Clark,  Jacob 
Paris,  Ambrose  White,  Tertius  D.  Southworth,  George  Duffield,  Bliss 
Eurnap,  J.  W.  M'CuUough,  D.  O.  Griswold,  E.  Cheever,  Obadiah  Wood- 
ruff. 


Mr.  Plumer  offered  the  following  resolution,  which  was  adopted,  viz. 

Resolved,  That  the  protest  just  offered  contains  no  mis-statement,  reasoning  or 
principle  which  has  not  been  fully  and  fairly  met  and  answered  in  the  answers  to 
other  protests  against  votes  of  this  house ;  and,  therefore,  for  an  answer,  we  refer 
to  the  answer  to  tlie  protest  respecting  the  abrogation  of  the  Plan  of  Union,  and 
also  to  the  answer  to  the  protest  of  members  of  the  Synod  of  the  Western  Reserve, 
and  to  the  answer  to  the  protest  of  certain  members  of  the  Synods  of  Genessee, 
Utica  and  Geneva. 


The  plaintiffs  next  offered  in  evidence  the  "Plan  of  Union,"  (As- 
sembly's Digest  p.  297,  and  Minutes  of  1801  p.  6,)  which  was  read 
as  follows,  viz: 

Sec.  5. — A  plan  of  union  between  Presbyterians  and  Congregationalists  in  the  new 
settlements,  adopted  i?i  1801. 

The  report  of  the  committee  appointed  to  consider  and  digest  a  plan  of  govern- 
ment for  the  churches  in  the  new  settlements,  was  taken  up  and  considered ;  and 
after  mature  deliberation  on  the  same,  approved,  as  follows: 

Regulations  adopted  by  the  General  Assembly  of  the  Presbyterian  Church  in 
America,  and  by  the  General  Association  of  the  state  of  Connecticut,  (provided  said 
Association  agree  to  them,)  with  a  view  to  prevent  alienation  and  promote  union 
and  harmony,  in  those  new  settlements  which  are  composed  of  inhabitants  from 
these  bodies. 

1.  It  is  strictly  enjoined  on  all  their  missionaries  to  the  new  settlements,  to 
endeavour,  by  all  proper  means,  to  promote  mutual  forbearance  and  accommodation, 
between  those  inhabitants  of  the  new  settlements  who  hold  the  Presbyterian  and 
those  who  hold  the  Congregational  form  of  church  government. 

2.  If  in  the  new  settlements  any  church  of  the  Congregational  order  shall  settle 
a  minister  of  the  Presbyterian  order,  that  church  may,  if  they  choose,  still  conduct 

7* 


78 

their  discipline  according  to  Congregational  principles,  settling  their  difficulties 
among  themselves,  or  by  a  council  mutually  agreed  upon  for  that  purpose :  but  if  any 
difficulty  shall  exist  between  the  minister  and  the  church  or  any  member  of  it,  it 
shall  be  referred  to  the  presbytery  to  which  the  minister  shall  belong,  provided 
both  parties  agree  to  it;  if  not,  to  a  council  consisting  of  an  equal  number  of 
Presbyterians  and  Congi-egationalists,  agreed  upon  by  both  parties. 

3.  If  a  Presbyterian  Church  shall  settle  a  minister  of  Congregational  principles, 
that  church  may  still  conduct  their  discipline  according  to  Presbyterian  principles; 
excepting  that  if  a  difficulty  arise  between  him  and  his  church  or  any  member  of 
it,  the  cause  shall  be  tried  by  the  Association  to  which  the  said  minister  shall 
belong,  provided  both  parties  agree  to  it ;  otherwise  by  a  council,  one  half  Con- 
gregationalists  and  the  other  half  Presbyterians,  mutually  agreed  on  by  the 
parties. 

4.  If  any  congregation  consists  partly  of  those  who  hold  the  Congregational 
form  of  discipline,  and  partly  of  those  who  hold  the  Presbyterian  form;  we  recom- 
mend to  both  parties  that  this  be  no  obstruction  to  their  uniting  in  one  church  and 
settling-  a  minister:  and  that  in  this  case,  the  church  choose  a  standing  committee 
from  the  communicants  of  said  churcli,  wliose  business  it  shall  be  to  call  to  account 
eveiy  member  of  the  church  who  shall  conduct  himself  inconsistently  with  the 
laws  of  Christianity,  and  to  give  judgment  on  such  conduct :  and  if  the  person 
condemned  by  their  judgment  be  a  Presbyterian,  he  shall  have  liberty  to  appeal 
to  the  presbytery  ;  if  a  Congregationalist,  he  shall  have  liberty  to  appeal  to  the 
body  of  the  male  communicants  of  the  church:  in  the  former  case  the  determina- 
tion of  the  presbytery  shall  be  final,  unless  the  church  consent  to  a  further  appeal 
to  the  synod,  or  to  the  General  Assembly  ;  and  in  the  latter  case,  if  the  party  con- 
demned shall  wish  for  a  trial  by  a  mutual  council,  the  cause  shall  be  referred  to 
such  council.  And  provided  that  the  said  standing  committee  of  any  church  shall 
depute  one  of  themselves  to  attend  the  presbyterj-,  he  may  have  ttie  same  right  to 
sit  and  act  in  the  presbytery  as  a  ruling  elder  of  the  Presbyterian  Church. 

On  motion.  Resolved,  That  an  attested  copy  of  the  above  plan  be  made  by  the 
stated  clerk,  and  put  into  the  hands  of  the  delegates  of  this  Assembly  to  the  Gene- 
ral Association,  to  be  by  them  laid  before  that  body  for  their  consideration  ?  and 
that  if  it  should  be  approved  by  them,  it  go  into  immediate  operation. — (Vol.  I.  p. 
261,  262.) 

Sec.  6.  Adopted  by  the  Association. 

The  delegates  to  the  last  General  Association  of  Connecticut  reported,  that  they 
all  attended  the  Association  during  the  whole  of  their  sessions,  and  were  received 
and  treated  with  great  cordiality  and  friendship. 

That  the  regulations  submitted  by  the  last  Assembly,  respecting  the  establish- 
ment of  churches  in  the  frontiers,  consisting  of  members  partly  of  the  Presbyterian 
and  partly  of  the  Congregational  denominations,  were  unanimously  adopted  by  the 
Association. — Vol.  i.  p.  276. 

Sec.  7.  An  order  for  printing  the  plan  in  1806. 

Resolved,  That  the  committee  of  missions  cause  a  number  of  copies  of  this  plan 
to  be  printed  and  delivered  to  the  missionaries  who  may  be  sent  by  the  Assembly 
among  the  people  concerned. — (Minutes,  Vol.  ii.  p.  192.) 

Mr. Randall  remarked,  that  the  title  given  in  the  Digest  to  the  docu- 
ment just  read  was  "  Plan  of  Union."  It  was,  however,  more  pro- 
perly denominated  in  the  minutes  of  the  Assembly,  and  on  the  face 
of  the  document  itself,  "  Regulations  to  promote  harmony  in  the 
New  Settlements."  It  was  only  a  measure,  in  accordance  with  an 
extended  system  of  friendly  correspondence  with  cognate  churches, 
adopted  by  the  Assembly  at  the  commencement  of  its  very  exist- 
ence, and  modified  and  expanded  from  time  to  time,  reaching  down 
nearly  to  the  present.  In  regard  to  the  intimacy  of  the  connexion 
which  it  established  with  another  denomination;  indeed,  it  fell  short 
of  a  plan  of  intercourse,  which  was,  in  1801,  in  full  operation, 
between  the  General  Assembly  of  the  Presbyterian  Churcii  and  the 
General  Association  of  Connecticut,  and  of  those  into  which  it  after- 


79 

ward  entered,  with  other  similar  bodies.  It  was  understood  to  be 
in  accordance  with  the  povyer  expressly  vested  in  the  General  As- 
sembl}^  by  the  Constitution  of  the  Church,  to  correspond  with  other 
churches. 

In  evidence  of  these  facts  he  then  read  from  the  Assembly's 
Digest,  sections  of  the  Plans  of  Union  and  correspondence,  adopted 
by  the  General  Assembly  with  several  ecclesiastical  bodies.  These 
documents  are  here  given  in  the  order  of  their  dates. 

INTERCOUKSE.— CHAPTER  II. 

OF  THE  GENERAL  ASSOCIATION  OF  CONNECTICUT. 

Sec.  1.  A  plan  of  union  and  correspondence  adopted  by  the  Assembly,  in  1792. 

The  minutes  of  the  convention  of  the  committees  of  the  General  Assembly  of  the 
Presbyterian  Church  in  the  United  States,  and  of  the  General  Association  of  the 
state  of  Connecticut,  were  taken  into  consideration,  an  extract  of  which  is  as 
follows.* 

Considering-  the  importance  of  union  and  harmony  in  the  Christian  Church,  and 
the  duty  incumbent  on  all  its  pastors  and  members  to  assist  each  other  in  promoting, 
as  far  as  possible,  the  g^eneral  interest  of  the  Redeemer's  king-dom  ;  and  consider- 
ing' further,  that  divine  Providence  appears  to  be  now  opening  the  door  for  pur- 
suing these  valuable  objects,  with  a  happy  prospect  of  success  ; 

This  convention  are  of  opinion,  that  it  will  be  conducive  to  these  important 
purposes — 

That  a  Standing  Committee  of  Correspondence  be  appointed  in  each  body, 
whose  duty  it  shall  be,  by  frequent  letters,  to  communicate  to  each  other  whatever 
may  be  mutually  useful  to  the  churches  under  their  care,  and  to  the  general  interest 
of  the  Redeemer's  Kingdom. 

That  each  body  should  from  time  to  time  appoint  a  committee  consisting  of 
three  members,  who  shall  have  a  right  to  sit  in  the  other's  general  meeting,  and 
make  such  communications  as  shall  be  directed  by  their  respective  constituents, 
and  deliberate  on  such  matters  as  shall  come  before  the  body ;  but  shall  have  no 
right  to  vote. 

That  effectual  measures  be  mutually  taken  to  prevent  injuries  to  the  respective 
churches  from  irregular  and  unauthorized  preachers. 

To  promote  this  end,  the  convention  judge  it  expedient,  that  every  preacher, 
traveUing  from  the  limits  of  one  of  these  churches  into  those  of  the  other,  shall  be 
furnished  with  recent  testimonials  of  his  regular  standing  and  good  character  as  a 
preacher,  signed  by  the  moderator  of  the  presbytery  or  association  in  which  he 
received  his  license  ;  or,  if  a  minister,  of  his  good  standing  and  character  as  such, 
from  the  moderator  of  the  presbytery  or  association  where  he  last  resided,  and  that 
he  shall,  previously  to  iiis  travelling  as  a  preacher  into  distant  parts,  further  re- 
ceive a  recommendation,  from  one  member,  at  least,  of  a  standing  committee  to 
be  hereafter  appointed  by  each  body,  certifying  his  good  qualifications  as  a 
preacher. 

Also,  that  the  names  of  this  standing  committee  shall  be  mutually  communicated, 
and  also  that  every  preacher  travelling,  and  recommended  as  above,  and  submitting 
to  the  stated  rules  of  the  respective  churches,  shall  be  received  as  an  authorized 
preacher  of  the  gospel,  and  cheerfully  taken  under  the  patronage  of  the  presbytery 
or  association  within  whose  limits  he  shall  find  employment  as  a  preacher:  And 

That  the  proceedings  of  the  respective  bodies,  on  this  report,  be  communicated 
to  our  brethren  of  the  Congregational  and  Presbyterian  churches  throughout  the 
states."  '    ' 

Upon  mature  deliberation,  the  Assemblj'  unanimously  and  cordially  approved  of 
the  said  plan,  and,  to  carry  the  same  into  effect,  appointed  the  Rev.  Dr.  John  Ro- 
gers, Dr.  John  Witherspoon,  and  Dr.  Ashbel  Green,  to  be  a  committee  of  corre- 

*  This  convention  originated  in  measures  adopted  by  the  General  Assembly  in 
1790  and  1791,  for  aff"ectmg  this  union  of  intercourse. 

[This  note  is  in  the  Digest,  and  the  minutes  of  1790  and  1791  were  subsequently 
read  by  plaintift"'s  counsel.] 


80 

spondence,  agreeably  to  said  plan.  And  it  is  moreover  agreed,  that  this  Assembly 
will  send  delegates  to  sit  and  consult  with  the  General  Association  of  Connecticut, 
and  receive  their  delegates  to  sit  in  this  Assembly,  agreeably  to  another  article  of 
the  plan,  as  soon  as  due  information  shall  be  received  that  it  is  adopted  on  the  part 
of  the  General  Association  of  Connecticut. 

The  Rev.  Dr.  M'Knight,  Dr.  M'Whorter,  Mr.  James  Woodhull,  Dr.  S.  S.  Smith, 
Dr.  Alison,  Dr.  Nesbitt,  Mr.  John  B.  Smith,  Mr.  Graham,  Mr.  Lacy,  Mr.  M'Call, 
Mr.  M'Donald,  and  Dr.  M'Corkle,*  were  appointed  a  standing  committee  to  certify 
the  good  qualifications  of  the  preachers  travelling  to  officiate  in  the  bounds  of  the 
Association  of  the  State  of  Connecticut;  and  it  was  moreover  agreed,  that  any 
preacher  travelling  as  aforesaid,  shall  have  at  least  the  name  of  one  of  the  commit- 
tee, who  shall  belong  to  the  synod  from  whose  bounds  he  came. — Vol.  i.  p.  53. — 
Digest,  p.  292  and  following. 

Sec.  2.  The  plan  ratified  by  the  Association. 

The  Rev.  Dr.  Jonathan  Edwards  and  the  Rev.  Mr.  Matthias  Burnet,  from  the 
General  Association  of  the  state  of  Connecticut,  appeared  in  the  Assembly,  and 
produced  an  extract  from  the  records  of  that  Association,  whereby  it  appeared  that 
the  convention,  between  said  Association  and  tiie  General  Assembly  of  the  Presby- 
terian Church  in  the  United  States  of  America,  had  been  ratified  on  their  part; 
and  that  these  gentlemen,  with  tlie  Rev.  Dr.  Timothy  Dwight,  were  appointed, 
agreeably  to  an  article  of  said  convention,  to  sit  in  this  Assembly:  whereupon  Dr. 
Edwards  and  Mr.  Burnet  were  admitted  as  members,  and  took  their  seats  accord- 
ingly.— Vol.  i.  p.  68. 

iSec.  3 .  An  alteration  in  the  plan  proposed  by  the  Assembly  in  1794. 

On  motion,  ordered,  That  the  delegates  appointed  from  the  General  Assembly 
to  the  General  Association  of  Connecticut,  propose  to  the  Association,  as  an  amend- 
ment to  the  articles  of  intercourse  agreed  upon  between  the  aforesaid  bodies,  that 
the  delegates  from  these  bodies  respectively  shall  have  a  right  not  only  to  sit  and 
deliberate,  but  also  to  vote  in  all  questions  which  shall  be  determined  by  either  of 
them: — And  to  communicate  the  result  of  their  proposal  to  the  next  Assembly. — 
Vol.  i.  p.  87. 

Sec.  4.  Agreed  to  by  the  Association. 

Dr.  M'Whorter  laid  before  the  General  Assembly  an  extract  from  the  minutes 
of  the  proceedings  of  the  General  Association  of  the  State  of  Connecticut,  which, 
having  been  read,  was  ordered  to  be  entered  upon  the  minutes  of  the  General 
Assembly,  and  was  as  follows: 

"  The  motion  of  the  General  Assembly  of  the  Presbyterian  Church,  that  the 
delegates  from  that  Assembly  to  this  Association,  and  the  delegates  from  this  Asso- 
ciation to  that  Assembly,  be  empowered  to  vote  on  all  questions  decided  in  those 
bodies  respectively,  was  taken  into  consideration,  and,  after  discussion,  the  Gene- 
ral Association  voted  a  compliance  with  the  said  proposal." 

That  the  above  is  an  authentic  extract  from  tlie  minutes  of  the  proceedings  of 
the  General  Association  of  the  State  of  Connecticut,  at  their  sessions  begun  on  the 
17th  day  of  June,  A.  D.  1794,  is  attested  by 

Jonathan  Edwards,  Scribe  of  the  General  Association. 

Vol.i.  p.  106. 

INTERCOURSE.— -CHAPTER  III. 

OF    THE    CONVENTION    OF    VERMONT. 

Sec.  1.  The  plan  of  union  and  correspondence  proposed  by  the  Assembly  in  1803. 

The  committee  appointed  on  the  communication  from  the  convention  of  the 
regular  ministers  of  the  gospel  of  the  state  of  Vermont,  reported.  The  report 
being  considered  and  amended,  was  adopted,  and  is  as  follows: 

Your  committee  are  opinion,  that  although  this  Assembly  have  not  received  any 
answer  to  the  request  of  last  Assembly,  proposed  to  the  convention  of  Vermont, 
yet  the  Assembly  have  received  satisfactory  information  on  the  subjects  alluded  to, 
both  from  their  own  delegates  to  the  General  Association  of  Connecticut  of  last 
year,  and  also  from  the  representatives  of  that  body  in  the  present  Assembly.  The 

*  By  an  after  order.  Rev-  Aaron  Woolworth,  of  Long  Island,  was  added  to  this 
committee. 


81 

committee,  therefore,  submit  the  following  plan  of  union  and  intercourse  between 
the  said  convention  and  the  General  Assembly,  viz. 

1.  Each  body  shall  send  one  or  two  delegates  to  meet  and  sit  with  the  other,  at 
the  stated  sessions  of  each  body  respectively. 

2.  The  delegate  or  delegates  from  each  respectively  shall  have  the  privilege  of 
joining  in  the  discussions  and  deliberations  of  the  body,  as  freely  and  fully  as  their 
own  members. 

3.  That  the  union  and  intercourse  may  be  full  and  complete  between  the  said 
bodies,  the  delegate  or  delegates  from  each  respectively,  shall  not  only  sit  and 
deliberate,  but  also  act  and  vote:  which  articles  comprise  the  great  principles  of 
the  union  between  the  General  Assembly,  and  the  General  Association  of  Connec- 
ticut. Your  committee  finally  submit  the  following  resolution,  viz:  Resolved,  That 
the  above  plan  shall  go  into  operation  so  soon  as  it  shall  be  ratified  by  the  Conven- 
tion.— Vol.  I.  p.  334. 

Sec.  2.  Ratified  by  the  Convention. 

A  communication  from  the  Convention  of  the  Congregational  ministers  in  the 
State  of  Vermont,  was  received  and  read.  From  this  it  appears,  that  the  Conven- 
tion have  ratified,  on  their  part,  the  plan  of  union  and  correspondence  agreed  upon 
and  transmitted  to  them  by  the  last  General  Assembly,  with  one  exception,  viz. 
that  the  Convention,  considering  the  smallness  of  their  number,  and  distance  from 
the  Assembly's  usual  place  of  meeting,  cannot  promise  to  send  an  annual  delegation 
to  the  General  Assembly.  Resolved,  That  this  Assembly  accept  and  ratify,  on  their 
part  and  behalf,  the  said  plan  of  union  and  correspondence  with  the  exception 
aforesaid;  and  that  the  Assembly  will  for  the  present  year,  send  one  delegate  to 
attend  the  next  meeting  of  the  Convention. — Vol.  II.  p.  28,  29. 

Sec.  3.  Proposition  relating  to  travelling  preachers,  made  in  1809. 

Resolved,  That  the  delegate  appointed  to  represent  this  Assembly  at  the  next 
meeting  of  the  Convention  of  Vermont,  be  and  he  is  hereby  authorized  to  propose 
and  agree  upon  the  same  regulations  which  have  been  agreed  to  be  observed  by 
this  Assembly  and  the  General  Association  of  Connecticut,  in  relation  to  the  cre- 
dentials requisite  for  such  ministers  as  may  come  within  the  bounds  of  this  Assem- 
bly or  the  Convention  of  Vermont,  for  the  purpose  of  preaching  the  gospel. — Vol. 
II.  p.  288. 

Sec.  4.  Accepted  by  the  Convention  in  1810. 

The  resolution  of  the  General  Assembly  respecting  the  appointment  of  a  stand- 
ing committee  to  certify  the  good  standing  of  ministers  travelling  into  the  bounds 
of  the  General  Assembly  from  the  State  of  Vermont,  and  which  your  delegate  was 
authorized  to  transact,  was  agreed  to  with  great  unanimity:  and  an  extract  from 
the  minutes  of  the  Convention  on  this  subject  is  forwarded  herewith;  to  which  it 
may  be  proper  to  add,  that  the  publishing  the  names  of  the  committees  appointed 
by  the  respective  bodies  in  this  case,  and  taking  measures  to  make  the  different 
parts  of  the  church  acquainted  with  them,  to  prevent  imposition,  was  considered 
of  great  consequence. — Vol.  II.  p.  311.     See  also  Vol.  III.  p.  131. 

INTERCOURSE.— CHAPTER  IV. 

OF  THE  GENERAL  ASSOCrATION'  OF  NEW  HAMPSHIRE. 

Sect.  1.  A  proposal  from  the  Association  accepted  in  1810. 

A  proposal  from  the  General  Association  of  New  Hampshire  was  made  by  the 
Rev.  William  F.  Rowland,  and  the  Rev.  John  H.  Church,  commissioners  appointed 
for  that  purpose,  for  a  union  between  them  and  this  Assembly,  similar  to  that  sub- 
sisting between  the  General  Association  of  Connecticut  and  this  Assembly.  The 
certificate  of  their  appointment,  and  the  papers  accompanying  it  containing  the 
fundamental  principles  and  regulations  of  the  Association  of  New  Hampshire,  were 
read. 

Resolved,  That  said  union  be  formed,  and  it  accordingly  was  formed. 

Resolved,  That  the  Rev.  Messrs.  Rowland  and  Church  be  invited  to  sit  as  mem- 
bers of  this  Assembly;  and  they  accordingly  took  their  seats. 

Resolved,  That  the  General  Assembly  send  annually  two  delegates  to  the  meet- 
ings of  the  General  Association  of  New  Hampshire. 


82 

Sect.  2.  ^n  alteration  in  the  delegation  proposed  by  the  Association,  in  1816. 

The  following  extract  from  the  minutes  of  the  General  Association  of  New 
Hampshire  was  received  and  read,  viz. 

"  Voted  that  the  delegates  from  this  General  Association  to  the  General  Assem- 
bly of  the  Presbyterian  Church,  be  instructed  to  propose  to  that  respected  body, 
that  this  Association  should  in  future  be  represented,  in  that  Assembly,  by  only 
one  delegate." 

True  copy  from  the  minutes. — Vol.  III.  p.  224. 

Sec.  3.  Acceded  to  by  the  Assembly. 

The  committee,  to  which  was  referred  the  extract  from  the  minutes  of  the  Gene- 
ral Association  of  New  Hampshire,  reported;  and  the  report  being  read,  was 
adopted,  and  is  as  follows,  viz  : 

That  after  due  deliberation  they  think,  that  the  articles  of  union  between  the 
General  Assembly  of  the  Presbyterian  Church,  and  the  General  Association  of 
New  Hampshire,  require,  that  the  Assembly  should  hereafter  only  send  one  dele- 
gate to  the  aforesaid  Association. 

Ordered,  that  a  copy  of  this  minute  be  forwarded  to  the  Association  of  New 
Hampshire  by  the  delegate  who  may  be  chosen  to  attend  the  next  meeting  of  said 
Association. — Vol.  III.  p.  226. 

INTERCOURSE.— CHAPTER  V. 

OF  THE  GENERAL  ASSOCIATION  OF  MASSACHUSETTS. 

Sec.  1.  A  Proposal  from  the  Association  accepted  by  the  Assembly  in  1811. 

A  proposal  from  the  General  Association  of  Massachusetts  proper,  was  made  by 
the  Rev.  Joseph  Lyman,  D.  D.,  and  the  Rev.  Samuel  Worcester,  delegates  ap- 
pointed for  that  purpose,  for  the  establishment  of  a  union  between  them  and  this 
Assembly,  similar  to  that  subsisting  between  the  Association  of  Massachusetts  pro- 
pet,  and  the  Associations  of  Connecticut  and  New  Hampshire.  The  certificate  of 
their  appointment,  and  the  articles  of  union  with  said  Associations,  were  read. 

The  articles  of  said  union  are  as  follow : 

"1st.  The  General  Association  of  Connecticut,  and  the  General  Association  of 
Massachusetts  proper  shall  annually  app  oint  each  two  delegates  to  the  other. 

"  2d.  The  delegates  shall  be  admitted  in  each  body  to  the  same  rights  of  sitting, 
debating  and  voting  with  their  own  members  respectively. 

3d.  "  It  shall  be  understood  that  the  articles  of  agreement  and  connexion  between 
the  two  bodies,  may  be  at  any  time  varied  by  their  own  consent." 

The  same  articles  were  adopted  in  their  connexion  with  the  Association  of  New 
Hampshire. 

The  delegates  stated  that  the  shorter  Catechism  of  the  Westminster  Assembly 
was  adopted  as  the  basis  of  their  union;  and  by  answering  several  questions  pro- 
posed to  them,  fully  satisfied  the  Assembly  relative  to  the  standard  of  their  faith, 
and  the  object  of  their  Association. 

Whereupon,  Resolved,  unanimously,  that  said  union  be  formed;  and  it  was  ac- 
cordingly formed. 

Resolved,  That  Dr.  Lyman  and  the  Rev.  Samuel  Worcester  be  enrolled  as  mem- 
bers of  this  Assembly  ;  and  they  took  their  seats  accordingly. 

Resolved,  That  the  Assembly  send  annually  two  delegates  to  the  General  Asso- 
ciation of  Massachusetts  proper. 

These  articles  of  intercourse  have  been  modified,  within  a  few 
years,  by  mutual  agreement  to  suspend  the  right  of  voting,  by  the 
correspondents  respectively,  in  each  other's  bodies. 

INTERCOURSE.— CHAPTER  VII. 

OF  THE  NORTHERN  ASSOCIATE  PRESBTTERY,   ETC. 

Sec.  1.  The  plan  of  correspondence  with  the  Presbytery  of  Albany  approved  by  the 
Assembly  in  1802. 

A  communication  was  received  from  the  Presbytery  of  Albany,  stating,  that  a 
joint  committee,  consisting  of  members  of  that  presbytery  and  members  from  a 


83 

presbytery  known  by  the  name  of  the  Northern  Associate  Presbytery,  had  met,  and 
agreed  upon  a  plan  of  friendly  correspondence  between  the  ministers  and  churches 
belonging  to  these  presbyteries  respectively,  consisting  of  .three  articles,  viz. :  The 
committee  has  in  effect  agreed, 

1.  That  there  shall  be  occasional  communion  between  the  members  of  the  parti- 
cular churches  subordinate  to  those  presbyteries  respectively. 

2.  That  there  be  a  friendly  interchange  of  services  among  the  ministers:  And, 

3.  That  each  presbytery,  while  in  session,  may  invite  members  occasionally  pre- 
sent from  the  other,  to  sit  as  corresponding  members:  That  the  Presbytery  of 
Albany  having  heard  the  report  of  the  said  committee,  approved  thereof,  and 
resolved  to  request  the  General  Assembly  to  sanction  the  same,  and  authorize  the 
Presbytery  of  Albany  to  adopt  it. 

The  Assembly  after  due  examination  and  deliberation,  expressed  their  approba- 
tion of  the  said  plan  of  correspondence. — Vol.  II.  p.  286. 

Sec.  2.  The  plan  of  union  and  correspondence  with  the  Synod  of  Mbany  approved, 
in  1808. 

The  Synod  of  Albany  requested  the  Assembly  to  sanction  a  plan  of  union  and 
correspondence,  between  themselves  and  the  Norlliern  Associate  Presbytery,  and 
the  Middle  Association  in  the  Western  District  in  the  State  of  New  York;  which 
plan  is  contained  in  pages  117 — 121  of  the  synodical  minutes.  The  plan  being 
read,  and  the  subject  discussed.  Resolved,  That  the  Assembly  sanction  the  aforesaid 
plan.— Vol.  II.  p.  258. 


INTERCOURSE.— CHAPTER  VIII. 

OF  THE  RKFORJIED  DUTCH  CHUKCH,  AND  THE  ASSOCIATE  REFORMED  CHURCH. 

Sec.  1.  In  1798,  committees  from  the  three  churches  met  in  convention,  and 
agreed  that  the  plan  of  intercourse,  having  for  its  basis  the  preservation  of  the 
several  ecclesiastical  judicatories  concerned,  in  a  state  entirely  separate  and  inde- 
pendent, should  embrace 

1.  The  communion  of  particular  churches; 

2.  The  friendly  interchange  of  ministerial  services;  and 

3.  A  correspondence  of  the  several  judicatories,  of  the  conferring  churches. 

It  was  moreover  agreed  that  the  several  churches  should  watch  over  each  other's 
purity  in  doctrine,  discipline,  and  manners,  and  be  ready  to  receive  complaints 
against  any  of  their  ministers  or  members  on  these  subjects. 

This  plan  was  unanimously  approved  by  the  General  Assembly;  but  it  was  not 
accepted  by  the  judicatories  of  the  other  churches.  Still,  however,  a  friendly  inter- 
course has  been  maintained,  more  or  less,  between  the  ministers  and  people  of  the 
three  denominations.     We  are  happy  to  add  that  it  is  increasing. 

Sec.  2.  Jl  negotiation  for  effecting  a  correspondence  luith  the  Associate  Reformed 
Church,  in  1819. 

Resolved,  That  Drs.  Romeyn,  Blatchford,  and  Green,  and  Mr.  Lewis  and  Dr. 
Rodgers,  be  a  committee  to  confer  with  a  similar  committee  of  the  General  Synod 
of  the  Associate  Reformed  Church,  and  report  to  the  next  General  Assembly  the 
result  of  their  conference  on  the  subject  of  a  brotherly  correspondence  between 
the  two  churches. 

The  following  communication  was  received  and  read: 

"  Session  of  the  General  Synod  of  the  Associate  Reformed  Church,  May  27, 
1819. 

'^ Resolved,  That  this  Synod  reciprocate  to  the  General  Assembly  their  assur- 
ances of  a  disposition  to  maintain  a  friendly  correspondence;  and  that  the  Rev.  Drs. 
Mason  and  Proudfit,  and  Mr.  M'Loud,  ministers;  and  Messrs.  William  Wilson  and 
Henry  Rankin,  elders;  be  and  they  hereby  are  appointed  commissioners  to  confer 
on  this  subject  with  the  commissioners  already  appointed  by  the  General  Assem- 
bly, and  that  the  result  of  their  deliberations  be  reported  to  this  Synod  at  its  next 
meeting. 

"By  order  of  the  General  Synod. 

"  R.  M'CARTEE,  Clerk  of  the  Synod." 

The  commissioners  from  the  two  churches  met  shortly  after  their  appointment, 
and  adopted  apian  of  correspondence:  and  it  is  presumed  that  the  plan  will  be 


84 

approved  by  the  General  Assembly  and  the  General  Synod  of  the  Associate  Re- 
formed Church,  in  May  next. 

[This  negotiation  resulted  in  the  union  of  the  two  churches,  as  subsequently 
g-iven  in  evidence  from  the  minutes  of  the  Assembly  of  1821-2.] 


The  plaintiffs  now  proceeded  to  the  examination  of  witnesses, 
conninencing  with  the  Rev.  WilHam  Patton,  D.  D.,  of  New-York — 
Mr.  Randall  remarking  that  this  was  going  out  of  the  regular  or- 
der of  the  testimony :  but  as  Dr.  Patton  deemed  it  necessary  to 
leave  this  city,  he  had  requested  to  be  examined  at  this  lime. 

Dr.  Patton  being  sworn — interrogated  by  Mr.  Randall — said:  I 
was  a  commissioner  to  the  General  Assembly  of  1838,  from  the 
Third  Presbytery  of  New  York.  I  attended  the  meeting  of  the 
Assembly  at  the  Seventh  Presbyterian  church,  in  Ranstead  Court, 
on  the  third  Thursday,  being  the  17th  day  of  May  last.  I  went 
there  about  half  past  10  o'clock,  on  the  morning  of  that  day.  The 
seats  near  to  the  pulpit,  and  those  around  the  chair  usually  occu- 
pied by  the  moderator,  were  principally  filled  at  that  time,  by  dele- 
gates to  the  General  Assembly,  who  had  been  in  session  there,  as  a 
convention,  during  the  morning.  I  obtained  a  seat  in  a  pew  on  the 
middle  aisle  of  the  church.  Immediately  after  the  introductory 
religious  exercises  and  sermon,  Dr.  Elliott,  the  moderator  of  the 
pj'evious  year,  announced  that  he  would  proceed,  after  the  benedic- 
tion, to  constitute  the  General  Assembly  with  prayer. 

Accordingly,  Dr.  Elliott  left  the  pulpit,  and  took  his  stand  in  front 
of  it,  where  he  offered  a  short  prayer.  At  its  close,  I  rose  and  ad- 
dressed the  moderator,  by  his  official  title,  slating  to  him,  that  I  held 
in  my  hand  certain  resolutions,  which  I  was  desirous  to  offer — and 
asked  permission  to  read  them  at  that  time.  Those  resolutions  in 
the  printed  minutes  are  correctly  given.  The  moderator  said  they 
were  out  of  order,  as  the  first  business  was  to  hear  the  report  of  the 
clerks  on  the  roll.  1  informed  the  moderator  that  the  resolutions 
related  to  the  formation  of  the  roll — that  I  would  present  them 
without  comment;  and  was  willing  to  have  the  sense  of  the  house 
taken  on  them  without  debate.  The  moderator  said  the  clerk  had 
the  floor.  I  then  reminded  him  that  I  had  the  floor  before  the  clerk. 
The  moderator  again  declared  me  out  of  order;  and  I  appealed 
from  his  decision,  which  was  seconded.  The  moderator  declared 
the  appeal  to  be  out  of  order,  and  I  took  my  seat. 

Mr.  Randall  here  requested  the  witness  to  read  the  resolutions, 
which  he  held  in  his  hand. 

Mr.  Hubbell  objected  to  their  being  read,  remarking,  that  their  pa- 
per was  not  read  to  the  General  Assembly,  and  therefore,  though  the 
fact  of  its  having  been  offered  is  a  part  of  the  testimony,  the  con- 
tents of  the  paper  are  not.  We  did  not  know  at  that  time  what 
were  its  contents,  and,  non  constat,  we  are  not  accountable  for  it. 
If  we  had  known  what  the  contents  of  the  paper  were,  we  might 
have  acted  differently  on  the  occasion.  If  at  any  future  stage  of 
the  proceedings,  it  shall  appear  that  the  resolutions  were  read  to  us 


85 

in  the  General  Assembly,  we  will  perhaps  have  no  objection  to 
their  being  read  here.  But  it  will  be  time  enough,  when  that  fact 
shall  be  established. 

The  Court  overruled  the  objection,  and  the  witness  commenced 
reading,  when 

Mr.  Huhhell  objected  to  his  reading  further,  alleging  that  the 
paper  he  was  reading  from  was  not  the  original. 

The  witness  stated  that  he  had  given  the  original  paper,  of  which 
this  was  a  true  copy,  to  Dr.  Erskine  Mason,  the  Stated  Clerk  of  the 
General  Assembly. 

The  objection  was  withdrawn,  on  Mr.  Randall's  saying  that  he 
would  call  Dr.  Mason  to  account  for  it. 

The  witness  then  completed  the  reading  of  the  paper,  as  follows: 

"Whereas,  the  General  Assembly  of  1837  adopted  certain  reso- 
hitions  intended  to  deprive  certain  presbyteries  of  the  right  to  be 
represented  in  the  General  Assembly:  and  whereas,  the  more  fully 
to  accomplish  their  purpose,  the  said  Assembly  of  1837  did  require 
and  receive  from  their  clerks  a  pledge  or  promise,  that  they  would, 
in  making  out  the  roll  of  commissioners  to  constitute  the  General 
Assembly  of  1838,  omit  to  introduce  therein  the  names  of  com- 
missioners from  said  presbyteries:  and  whereas,  the  said  clerks, 
having  been  requested  by  commissioners  from  the  said  presbyteries 
to  receive  their  commissions  and  enter  their  names  on  the  roll  of 
the  General  Assembly  of  1838,  now  about  to  be  organized,  have 
refused  to  receive  and  enter  the  same :  Therefore, 

"  1.  Resolved,  That  such  attempts  on  the  part  of  the  General  As- 
sembly of  1837,  and  their  clerks,  to  direct  and  control  the  organ- 
ization of  the  General  Assembly  of  1838,  are  unconstitutional,  and 
in  derogation  of  its  just  rights  as  the  general  representative  judi- 
catory of  the  whole  Presbyterian  Church  in  the  United  States  of 
America. 

"  2.  Resoloed,  That  the  General  Assembly  cannot  be  legally  con- 
stituted, except  by  admitting  to  seats,  and  to  equality  of  powers,  in 
the  first  instance,  all  commissioners,  who  present  the  usual  evi- 
dences of  their  appointment;  and  that  it  is  the  duty  of  the  clerks, 
and  they  are  hereby  directed  to  form  the  roll  of  the  General  As- 
sembly of  1838,  by  including  therein  the  names  of  all  commissioners 
from  presbyteries  belonging  to  the  said  Presbyterian  Church,  not 
omitting  the  commissioners  from  the  several  presbyteries  within 
the  bounds  of  the  Synods  of  Utica,  Geneva,  Genessee  and  the 
Western  Reserve;  and  in  all  things  to  form  the  said  roll  accord- 
ing to  the  known  practice  and  established  usage  of  previous  General 
Assemblies." 

The  witness  proceeded  as  follows  : 

The  moderator  having  declared  my  appeal  out  of  order,  directed 
the  clerk  to  read  the  report  on  the  roll.  Mr.  Krebbs,  the  perma- 
nent clerk,  then  read  the  roll  of  the  commissioners  as  made  out  by 
the  clerks.  The  names  of  the  commissioners  from  the  four  excinded 
synods  were  not  reported. 

8 


86 

The  moderator  then  announced  that  if  there  were  commissioners 
present  whose  names  had  not  been  entered  on  the  roll,  then  was 
the  proper  time  to  present  their  commissions,  or  words  to  that 
effect. 

Dr.  Erskine  Mason,  a  commissioner  from  the  third  Presbytery 
of  New  York,  then  rose  and  stated  that  he  held  in  his  hand  the 
commissions  of  several  commissioners  which  the  clerks  had  refused 
to  receive;  and  he  moved  that  the  roll  be  amended  by  adding  the 
names  of  those  commissioners.  He  at  the  same  time  tendered  the 
commissions  which  he  held  in  his  hand  to  the  moderator,  extending 
his  hand  towards  him,  and  saying  "here  they  are."  The  mode- 
rator asked  from  what  presbyteries  those  commissioners  were ; 
and  Dr.  Mason  replied  that  they  were  commissioners  from  the 
presbyteries  within  the  bounds  of  the  Synods  of  Utica,  Geneva, 
Genessee  and  the  Western  Reserve.  The  moderator  declared 
that  the  motion  to  receive  those  commissions  was  out  of  order. 
Dr.  Mason  then  said,  with  great  respect  for  the  chair,  he  must 
appeal  from  his  decision  to  the  house.  The  appeal  was  seconded. 
The  moderator  declared  the  appeal  to  be  out  of  order,  and  refused 
to  put  it  to  the  house.  Dr.  Mason  then  took  his  seat.  I  don't  re- 
collect anything  else  being  said  at  that  time. 

The  Rev.  Miles  P.  Squier,  a  commissioner  from  the  Presbytery 
of  Geneva,  then  rose  and  addressed  the  moderator,  staling  that 
he  had  a  commission  which  had  been  presented  to  the  clerks  and 
rejected  by  them,  and  he  now  presented  his  commission,  and  de- 
manded his  seat  on  that  floor.  The  moderator  asked  him  from 
what  presbytery  he  came.  Mr.  Squier  replied  from  the  Presbytery 
of  Geneva.  The  moderator  then  asked  him  if  the  Presbytery  of 
Geneva  belonged  to  the  Synod  of  Geneva.  Mr.  Squier  replied  that 
it  was  within  the  bounds  of  the  Synod  of  Geneva.  The  moderator 
replied  "  We  do  not  knoiv  you,  sir."     Mr.  Squier  then  took  his  seat. 

Immediately  after  this  the  Rev.  John  P.  Cleaveland,  a  commis- 
sioner from  the  Presbytery  of  Detroit,  Michigan,  arose,  and  after 
n  few  introductory  remarks,  in  which  he  stated  that  as  the  consti- 
tutional organization  of  the  General  Assembly  could  not  be  efl^ected 
except  at  that  time,  and  in  that  place,  he  moved  that  Dr.  Nathan  S. 
S.  Beman,  of  the  Presbytery  of  Troy,  be  moderator.  The  motion 
was  seconded,  and  then  put  to  the  house  by  Mr.  Cleaveland,  when 
it  was  carried  by  a  large  majority,  a  very  few  voting  in  the  negative. 

Dr.  Beman  then  rose  and  left  the  pew  in  which  he  had  been  sit- 
ting, and  took  his  station  in  the  middle  aisle  of  the  church  from 
one-third  to  one-half  of  the  way  down  from  the  pulpit,  where  he 
called  the  attention  of  the  house  to  business. 

Dr.  Mason  and  Mr.  E.  W.  Gilbert  were  then  nominated  and  elected 
clerks,  no  other  nomination  having  been  made. 

Dr.  Beman  stated  that  the  next  business  would  be  the  election  of 
moderator  of  the  General  Assembly.  The  Rev.  Dr.  Samuel  Fisher, 
of  the  Presbytery  of  Newark,  was  nominated,  and  no  other  person 
being  put  in  nomination,  the  question  was  taken  viva  voce,  and  Dr. 
Fisher  was  declared  to  be  duly  elected.  My  own  recollection  is 
that  the  vote  was  unanimous,  that  there  were  no  negatives.     Dr. 


87 

Beman  then  stated  to  Dr.  Fisher  that  he  was  duly  elected  mode- 
rator of  the  General  Assembly,  and  that  he  would  govern  himself 
by  the  rules  which  should  be  adopted  by  the  Assembly ;  as  it  is 
usual  for  the  General  Assembly  to  adopt  rules  for  its  own  govern- 
ment. 

Dr.  Fisher  took  the  station  which  Dr.  Beman  had  occupied  as 
moderator  and  called  for  business.  The  Rev.  Dr.  Mason  and  the 
Rev.  E.  W.  Gilbert  were  nominated  together,  and  chosen  stated 
and  permanent  clerks.  No  other  person  was  nominated.  A  mo- 
tion was  made  that  the  General  Assembly  now  adjourn  to 
meet  forthwith  in  the  session  room  of  the  First  Presbyterian 
Church,  on  Washington  Square;  which  was  put  and  carried  unani- 
mously, that  is,  there  were  no  negative  votes.  Dr.  Fisher  then 
announced  the  adjournment  of  the  General  Assembly  to  meet 
forthwith  in  the  lecture  room  of  the  First  Presbyterian  Church, 
and  directed  that  if  any  of  the  commissioners  had  not  presented 
their  commissions  they  should  repair  to  that  church  and  present 
them.  We  went  to  the  First  Presbyterian  Church,  and  transacted 
the  business  of  the  General  Assembly  in  a  very  affectionate  and 
brotherly  manner. 

I  offered  my  resolutions  again  to  the  General  Assembly,  on  our 
arrival  at  the  First  Church,  and  they  were  unanimously  adopted. 

A  committee  of  elections  was  then  appointed  to  whom  informal 
commissions  were  referred,  and  several  commissions  were  pre- 
sented and  received  from  commissioners  who  came  in  after  the 
adjournment  to  the  First  Church.  The  roll,  including  all  who  had 
reported  commissions  during  any  stage  of  the  organization,  was 
called  daily  while  the  General  Assembly  met  in  the  First  Church. 
The  sessions  there  continued  about  two  weeks,  during  which  the 
relators  in  this  case  were  elected  trustees  by  the  General  Assembly. 

Mr.  Hubbell  here  suggested,  that  as  the  election  of  such  trustees 
was  recorded  in  the  minutes  of  the  proceedings  of  the  body  assem- 
bled at  the  First  Church,  claiming  to  be  the  General  Assembly  of 
the  Presbyterian  Church,  time  would  be  saved  by  waiving  the  ex- 
amination of  the  witness  on  that  point. 

Mr.  Randall  said,  if  the  fact  of  these  trustees  being  elected  was 
admitted,  he  had  no  objection  to  waive  the  examination. 

The  court  adjourned. 

Thursday,  March  7. 

Examination  of  Dr.  Patton  continued. — The  motions  for  the  elec- 
tion of  moderator  were  made  and  put  distinctly,  and  in  a  voice  to 
be  heard  throughout  the  house.  Dr.  Elliott  had  a  chair  directly  in 
front  of  the  pulpit.  Dr.  Beman,  while  he  officiated  as  temporary 
moderator,  held  a  position  in  the  middle  aisle  as  before  described. 
There  were,  on  some  of  the  motions,  a  few  negative  votes,  coming, 
as  I  should  judge  by  the  sound,  from  the  south-west  part  of  the 
house,  where  the  body  of  the  Old  School  brethren  sat.  Some  of 
those  brethren,  however,  sat  on  the  left,  and  in  front  of  the  pulpit. 
While  I  was  endeavouring  to  obtain  a  hearing  for  the  resolutions 
which  I  presented,  there  were  frequent  calls  to  "  order"  from  gen- 
tlemen in  the  same  general  neighbourhood  with  the  moderator. 


88 

When  Dr.  Mason  rose  to  make  his  motion  the  calls  increased ; 
and  whilst  Mr.  Cleaveland  was  speaking  cries  of  "  order,  order,''' 
were  repeated  by  several  persons,  and  were  much  more  vociferous 
than  previously.  This  w^as  accompanied  with  scraping  of  the 
feet,  coughing,  and  some  very  emphatic  hisses,  proceeding  from 
the  same  part  of  the  house,  and  obviously  intended,  as  it  appeared 
to  me,  to  prevent  the  progress  of  business.  This  noise  had  in  great 
measure  subsided  before  Mr.  Cleaveland  put  his  motion  to  the  house. 
When  Dr.  Fisher  had  announced  the  adjournment  of  the  General 
Assembly,  there  was  some  clapping  with  the  hands  by  persons  in 
the  galleries,  expressive  of  approbation,  and  a  few  hissed  at  the 
same  time,  giving  the  light  and  shadow  of  the  picture. 

These,  as  far  as  my  memory  serves  me,  are  the  material  occur- 
rences on  that  occasion.  I  presume  there  were  only  spectators  in 
the  gallery;  know  of  no  members  being  there.  It  is  not  usual. 
A  mixed  company  was  in  the  gallery — ladies  and  gentlemen.  I 
think  that  every  commissioner  had  ample  opportunity  to  vote  on 
every  question  stated  to  have  been  put  and  carried. 

Cross  examination. — Interrogated  by  Mr.  Hubbell,  the  witness 
said — I  am  not  absolutely  certain  who  seconded  Dr.  Mason's  mo- 
tion. My  impression  is  that  it  was  Dr.  Dickinson,  Professor  in 
Lane  Seminary.  He  sat  in  that  vicinity,  and  I  get  my  impression 
from  general  familiarity  with  the  tones  of  his  voice. 

I  seconded  Dr.  Mason's  appeal.  Our  roll  was  called  very  soon 
after  we  went  to  the  First  Church,  for  the  purpose  of  having  it 
complete.  I  cannot  answer  with  accuracy  how  many  responded 
to  that  call,  as  I  kept  no  account  at  the  time.  I  should  say  more 
than  one  hundred;  say  in  the  general  neighbourhood  of  a  hundred 
and  seventeen,  or  from  a  hundred  and  fifteen  to  a  hundred  and 
twenty.  This  number  included  those  whose  right  was  disputed. 
The  excinded  I  understand  by  the  disputed.  This  was  the  first 
time  of  calling  the  roll  after  Mr.  Cleaveland's  motion.  We  do  not 
recognise  that  there  was  any  new  organization. 

I  was  sitting  in  the  same  pew  with  Mr,  Cleaveland  when  he 
made  his  motion.  His  face  was  turned  toward  Dr.  Elliott  when 
he  made  the  preliminary  remarks,  and  in  the  same  direction  when 
he  made  the  motion  and  when  he  put  the  question.  He  did  not,  at 
any  time  during  his  remarks  or  his  motion,  turn  either  his  back  or 
his  side  toward  the  moderator.  There  was  no  gathering  or  crowd- 
ing of  persons  round  him,  that  I  recollect,  during  either  his  remarks 
or  his  putting  the  motion.  He  did  not  call  the  moderator  by  name, 
but  looking  towards  him,  addressed  his  remarks  and  put  his  motion 
to  the  house,  a  large  portion  of  which  was  between  himself  and  the 
moderator.  These  remarks  stated,  that  a  number  of  the  commis- 
sioners to  the  Assembly  of  1838  had  been  refused  their  seats,  and 
that  learned  counsel  had  informed  us  that  the  constitutional  organi- 
zation of  the  General  Assembly  of  1838  could  not  be  effected  or 
secured  except  at  that  time  and  place.  He  then  made  a  remark  to 
the  effect  that,  in  view  of  this  position,  he  hoped  it  would  not  be 
considered  discourteous  to  proceed  with  the  organization  of  the 
Assembly,  and  offered  his  resolution,  and  put  it  to  the  house,  as  has 


89 

been  already  detailed.  Dr.  Beman,  when  called  to  the  chair,  took 
a  place  in  the  middle  aisle,  not  far  from  Mr.  Cleaveland.  My 
impression  is,  that  he  had  been  before  seated  in  the  same  pew  with 
Mr.  Cleaveland,  or  near  it.  He  had  no  chair  in  the  aisle — he  stood 
up.  Dr.  Fisher,  when  chosen  moderator,  took  the  same  place,  and 
also  stood  up.  Drs.  Beman  and  Fisher,  when  they  occupied  this 
place,  both  looked  towards  the  pulpit.  I  think  it  probable  there 
were  others  besides  members  on  the  floor,  for  the  church  was 
well  filled.  No  measures  were  taken  to  prevent  these  from  votino^, 
or  to  ascertain  that  they  did  not  vote.  Nothing  of  this  kind  was 
suspected.  While  Dr.  Beman  and  Dr.  Fisher  held  the  place  men- 
tioned. Dr.  Elliott,  as  a  man,  filled  the  chair,  where  he  had  been 
before,  but  now  shorn  of  his  office. 

I  presume  that  he  did  not  consider  himself  shorn  of  office,  and 
believe  he  continued  to  sit  where  he  had  before,  until  we  adjourned 
to  the  First  church.  Dr.  Elliott  called  me  to  order,  as  already 
stated.  He  also  called  Dr.  Mason  to  order,  and  Mr.  Cleaveland, 
frequently  using  the  little  hammer  that  is  put  into  the  moderator's 
hand.  J  do  not  know  that  this  hammer  is  a  badge  of  office:  it  is 
not  always  used ;  though  of  late  I  believe  it  has  been,  commonly. 
In  some  Presbyterian  Assemblies  where  I  have  been,  the  moderator 
has  used  his  cane.  I  do  not  mean,  to  strike  the  members.  I  do  not 
know  to  whom  this  hammer  belongs,  unless  it  is  the  property  of  the 
General  Assembly.  Dr.  Beman  had  no  hammer.  He  did  not  use 
a  cane.  I  did  not  hear  Dr.  Beman  call  Dr.  Elliott  to  order.  Dr. 
Elliott  had  ceased  calling  to  order,  and  had  ceased  rapping  with  the 
mallet,  before  this  time.  I  arn  not  able  to  say,  whether  that  part  of 
the  Assembly,  called  the  Old  School  party,  took  any  part  in  the 
proceedings,  after  Dr.  Beman  took  the  chair,  up  to  the  time  of  ad- 
journment, except  by  their  silence.  The  cries  of  order,  and  the 
coughing  and  hissing  had  ceased,  when  Mr.  Cleaveland  got  through 
with  his  preliminary  remarks.  These  noises  had  ceased  when  he 
made  his  motion,  and  there  was  but  little  coughing,  or  hissing,  or 
noise  of  the  hammer,  afterwards. 

The  house  had  been  occupied  that  morning  for  several  hours  be- 
fore the  General  Assembly  met,  and  nearly  or  quite  up  to  the  com- 
mencement of  the  religious  exercises,  by  a  convention  of  those  who 
term  themselves  Old  School  men,  sitting  with  closed  doors,  and  ad- 
mitting none  to  witness  their  counsels,  except  those  who  would 
sustain  their  proceedings. 

[Here  the  witness  was  interrupted  by  Mr.  Huhbell,  who  said  he 
could  not  know  this — and  objected  to  his  giving  a  statement  of  mat- 
ters of  which  he  could  not  possibly  have  direct  knowledge.'] 

Mr.  Randall  said  that  the  witness  was  competent  and  at  liberty 
to  state  whether  the  fact  came  wMthin  his  own  knowledge. 

Mr.  Hubbell  repeated  his  question,  and  requested  the  witness  to 
confine  his  answer  to  that,  viz:  What  part  of  the  house  did  the 
New  School  members  occupy? 

The  witness  resumed.  They  occupied  such  seats  as  they  found 
vacant  when  thev  entered  the  church,  which  were  generally  at  a 

8* 


90 

considerable  distance  from  the  pulpit.  A  portion  of  them  were 
around  the  pew  occupied  by  Mr.  Cleaveland,  and  behind  him  :  they 
were  mostly  in  that  general  neighbourhood,  and  toward  the  north 
part  of  the  church.  I  did  know  at  the  time,  accurately,  how 
many  persons  the  entire  roll,  called  after  the  adjournment,  contain- 
ed. I  cannot  now  state  exactly.  There  were  not,  that  I  know  of, 
two  persons'  names  on  that  roll,  who  arrived  in  the  city  after  our 
adjournment.  Neither  Dr.  Beman  nor  Dr.  Fisher  demanded  the 
possession  of  the  chair,  or  of  the  hammer,  from  Dr.  Elliott.  I  have 
seen  the  depositions  of  Dr.  Beman  and  Mr.  Cleaveland,  during  this 
visit  to  the  city.  I  have  read  them — this  I  mean  by  saying  I  have 
seen  them.     There  was  a  previous  consultation. 

Mr.  Hubhell  interrupted  the  witness,  and  demanded  that  he  should 
give  a  categorical  answer  to  the  question:  Were  your  proceedings 
in  the  organization  of  the  General  Assembly,  the  result  of  a  pre- 
concerted plan  of  the  JVew  School  men  ? 

Mr.  Randall  said  that  the  witness  had  a  right  to  give  an  explana- 
tory answer,  else,  his  answer  being  shaped  by  the  question,  might 
necessarily  produce  a  false  impression. 

The  Court  said  that  the  witness  might  answer  "  Yes,"  or  "  JVb," 
and  then  explain. 

Witness  said,  I  answer  Yes,  with  this  explanation,  that  there 
was  a  meeting  of  commissioners  previous  to  the  meeting  of  the 
General  Assembly,  in  which  there  was  a  consultation  as  to  the 
manner  in  which  an  ex  farte  organization  might  best  be  prevented, 
and  a  constitutional  organization  of  the  General  Assembly  be  se- 
cured. This  arrangement  was  not  made  in  consequence  of  our 
knowing  that  we  should  be  in  a  minority  in  that  Assembly,  nor  from 
an  apprehension  that  we  should  be.  It  was  to  maintain  the  Consti- 
tution inviolate.  We  had  no  knowledge  whether  we  should  be  in 
the  minority  or  majority,  and  could  have  none  until  all  the  com- 
missions were  received.  I  think  there  was  a  small  majority  on 
what  was  termed  the  Old  School  side:  but  this  could  only  be  known 
afterwards  as  matter  of  history — and  not  before,  as  prophecy. 

I  think  I  have  already  answered  that  question,  [viz:  Would  you 
not  have  known  it  as  matter  of  anticipation?] 

That  meeting  was  held  in  the  lecture-room  of  the  First  Presby- 
terian church.  It  commenced  its  session  on  the  Monday  evening 
preceding  the  meeting  of  the  General  Assembly,  and  was  held  in 
pursuance  of  an  invitation  given  to  all  the  commissioners  to  the 
Assembly,  to  attend  a  meeting  for  consultation. 

I  do  not  know  how  many  attended.  The  clerks  of  that  meeting 
are  present.  They,  I  presume  can  state  the  number.  The  invita- 
tion was  given  through  the  medium  of  the  public  newspapers.  I 
have  here  a  copy  of  the  notice,  as  it  was  published  in  the  public 
papers. 

At  the  request  of  the  counsel,  the  witness  then  produced  a  printed 
paper,  in  the  form  of  a  circular,  which  he  read  as  follows : 

["  Important  Document. — We  request  the  attention  of  Ministers 
and  Elders,  to  the  following  notice :] 


91 


"  Commissioner?,  to  the  General  Assembly  of  1838. 
A  Meeting  for  Consultation. 
"Whereas,  the  state  of  the  Presbyterian  body  at  present  is  such 
as  to  demand  the  consultations  and  prayers  of  all  its  Ministers  and 
Churches,  in  order  to  preserve  its  unity  and  peace:  and  whereas, 
the  measures  adopted  at  the  last  Assembly,  excluding  certain 
Synods  and  the  Third  Presbytery  of  Philadelphia,  and  providing 
for  the  organization  of  the  Assembly  of  1838,  give  reason  to  appre- 
hend unhappy  collisions  at  the  opening  of  that  Assembly,  as  well  as 
subsequently;  and  whereas,  all  party  conventions  in  the  Church, 
except  for  the  defence  of  rights  which  have  been  assailed,  are 
greatly  to  be  deprecated,  it  is  therefore  proposed  and  recommended, 
that  all  the  delegates  to  the  Assembly  of  1838,  meet  at  8  o'clock, 
on  the  evening  of  Monday  the  14th  of  May,  in  the  First  Presby- 
terian Church  of  Philadelphia,  for  the  purpose  of  interchanging 
views,  and  of  devising  such  measures  as  the  present  exigencies  of 
the  Church  may  require. 

[Rev.  Thomas  McAuley,  D.  D.,  James  Richards,  D.  D., 
Luther  Halse}',  D.  D.,  Josiah  Hopkins,  E.  W.  Gilbert,  John 
L.  Grant,  Lyman  Beecher,  D.  D.,  Calvin  E.  Stow,  Thomas 
J.  Biggs,  Baxter  Dickinson,  Sylvester  Eaton,  Samuel  C. 
Aiken,  Samuel  Hanson  Cox,  D.D.,  T.  S.  Spencer,  Samuel 
Fisher,  D.  D.,  N.  S.  S.  Beman,  D.  D.,  Daniel  Dana,  D.  D., 
George  E.  Pierce,  Wm.  Patton,  D.  D.,  E.  Cheever,  J.  P. 
Cleaveland. 
"  DQ^  N.  B. — Editors  of  religious  papers  are  requested  to  copy 
the  above."] 

Note. — The  parts  of  the  preceding  document  inclosed  in  brack- 
ets, were  not  attached  to  the  copy  read  by  Dr.  P.  The  paper,  as 
originally  published  in  the  Philadelphia  Observer,  and  above  given, 
with  the  signatures  and  the  editorial  notes,  was  afterwards  read  to 
the  Jury. 

The  copy  which  I  have  read  has  no  date.  The  notice  took  the 
date  of  the  papers  in  which  it  was  published.  It  was  signed  by 
some  twenty  clergymen.  It  was  published  in  all  the  religious 
newspapers  in  which  we  could  get  it  inserted,  in  this  state.  New 
York,  and  elsewhere.  I  think  it  was  published  in  Maryland  and 
Ohio.  As  wide  a  circulation  was  given  to  it  as  possible.  Some 
who  acted  with  the  body  organized  under  Dr.  Plumer,  met  and 
voted  at  the  consultation  meeting.  Drs.  Church  and  Bradford  I 
recollect,  and  believe  there  were  others;  but  I  cannot  identify  them 
at  present.  The  circular  was  signed  by  Drs.  Dana,  Beman,  Fisher, 
Halsey,  myself,  and  others.  I  think  about  twenty.  Dr.  Halsey, 
formerly  professor  in  the  Western  Theological  Seminary  at  Alle- 
gheny Town.  He  was  not  professor  there  at  that  time.  He  was 
then  located  at  Auburn.  I  do  not  recollect  that  Drs.  Church  and 
Bradford  signed  the  circular,  nor  that  any  who  signed  this  paper 
sat  in  the  Assembly  under  Dr.  Plumer.     The  signing  of  it  was  not 


92 

confined  to  commissioners.  There  was  some  diversity  of  opinion, 
in  our  debates,  as  to  the  means  to  be  used  for  securing  the  object; 
but  no  difference  as  to  the  end,  that  of  securing  a  constitutional 
organization  of  the  General  Assembly.  There  was  a  resolution  on 
which  there  was  debate,  and  to  which  there  was  some  opposition, 
when  it  was  first  offered.  But  this  opposition  almost  entirely  dis- 
appeai'ed  before  the  debate  closed.  The  resolution  was  finally 
agreed  to  without  opposition.  Various  classical  figures  were  used 
during  the  debate  ;  among  them,  one  eloquent  gentleman  said  some- 
thing about  passing  the  Rubicon. 

Re-examined  by  Mr.  Randall. — The  witness  said:  Dr.  Beman  is 
now  in  England,  I  presume.  He  left  this  country  in  January  last, 
on  account  of  ill  health.  I  had  the  pleasure  of  seeing  him  safe  on 
board  of  the  vessel  in  which  he  sailed.  Mr.  Cleaveland  resides  in 
the  town  of  Marshall,  in  the  State  of  Michigan.  I  presume  he  is 
now  there.  The  depositions  which  I  said  I  had  read,  were  handed 
to  me  by  yourself.  There  is  no  such  thing  as  a  hammer  or  a  stick 
to  be  used  by  the  Moderator,  recognized  in  the  form  of  govern- 
ment of  the  Presbyterian  Church.  The  constitution  is  strong 
enough  without  them.  We  occupied  the  nearest  seats  to  the  pul- 
pit which  we  found  vacant  when  we  went  into  the  church  in  Ran- 
stead  court.  We  found  the  seats  nearest  the  pulpit  occupied  by 
what  are  called  the  Old  School  party.  I  do  not  know  from  per- 
sonal observation  that  the  Old  School  party  sat  with  closed  doors 
there  in  the  morning,  but  I  have  no  doubt  that  they  did  sit  in  that 
manner.  I  have  been  a  minister  of  the  Presbyterian  Church  about 
sixteen  or  seventeen  years.  I  was  forty  years  old  in  August  last. 
I  was  born  in  the  city  of  Philadelphia.  Dr.  M'Auley's  name  was 
appended  to  the  circular.  The  gentleman  who  made  use  of  the 
term,  passing  the  Rubicon,  was  the  Rev.  Jared  Waterbury.  He 
afterwards  acted  with  the  Constitutional  Assembly.  The  doors  of 
the  First  Presbyterian  Church  were  at  all  times  open,  and  all  the 
commissioners  to  the  General  Assembly  had  opportunity  to  take 
their  seats  with  us  if  they  chose.  In  our  consultation  meetings, 
every  one  who  chose  could  come  in.  None  were  excluded.  There 
was  no  bolting  nor  fastening. 

I  stated  yesterday  that  I  handed  the  original  copy  of  my  resolu- 
tions to  the  Stated  Clerk,  Dr.  Mason.  That  was  a  mistake.  I 
handed  them  to  Mr.  Gilbert,  the  Permanent  Clerk. 

The  Honourable  William  Jessup,  called  on  behalf  of  the  plaintiffs, 
testified:  I  was  a  commissioner  to  the  General  Assembly  of  the 
Presbyterian  Church,  in  1837,  from  the  Presbytery  of  Montrose,  in 
this  state,  but  connected  with  the  Synod  of  New  Jersey.  So  far  as 
I  know,  this  presbytery  has  always  been  in  that  synod.  I  took  an 
active  part  in  the  proceedings  of  the  Assembly,  was  a  member  of 
the  committee  appointed,  on  the  motion  of  Mr.  Breckinridge,  to 
devise  measures  for  the  division  of  the  church.  Mr.  Breckinridge 
was  also  a  member.  The  two  portions  of  the  committee  sometimes 
held  separate  meetings,  and  sometimes  they  all  met  together. 

Mr.  Randall  here  asked  the  witness  whether  he  recollected  any 
thing  said  by  a  member  of  the  committee,  when  about  separating, 


93 

in  regard  to  the  consequences,  which  would  result  from  the  refusal 
of  the  New  School  members,  to  concur  in  the  terms  of  division 
proposed  by  the  other  ])arty  1 

The  question  was  objected  to  by  the  defendant's  counsel,  on  the 
ground  (stated  by  Mr.  Huhbell)  that,  as  the  proceedings  of  the 
committee  were  recorded,  and  in  evidence,  embracing  the  conflict- 
ing propositions  of  the  two  parties,  the  remarks  of  individual  mem- 
bers of  the  committee  could  have  no  bearing  on  this  cause:  that 
indeed  the  whole  subject  was  foreign  to  this  controversy.  When 
the  account  of  these  attempts  at  compromise  was  read  by  the 
other  party  from  the  minutes  of  1837,  we  did  not  object,  because 
it  was  immaterial,  and  at  most  only  irrelevant.  Now,  they  attempt 
to  substitute  for  the  record,  the  remarks  of  individuals,  of  which  we 
neither  know  nor  wish  to  know  any  thing.  They  were  ex  'parte 
statements,  with  which  these  parties  have  nothing  to  do. 

Mr.  Randall  replied :  We  think  this  a  very  important  link  in  the 
chain  of  testimony  which  we  design  to  offer,  and  as  a  decision 
adverse  to  its  admission  would  be,  in  our  opinion,  prejudicial  to 
the  cause  of  justice,  we  hope  your  Honour  will  allow  us  to  connect 
the  whole  chain  of  testimony  by — 

Here  Judge  Rogers  suggested  to  Mr.  Randall  that,  as  the  ques- 
tion was  an  important  one,  he  had  better  present  it  to  the  Court  in 
writing. 

Mr.  Randall  replied  that  he  would  do  so,  and  to  save  time,  he 
would  now  offer  in  evidence  "  The  Philadelphia  Observer,"  of 
March  29th,  1838,  containing  the  notice  of  the  meeting  for  consul- 
tation, previously  mentioned  by  Dr.  Patton.  The  notice  was  then 
read,  together  with  the  names  of  those  who  signed  it. 

[This  document  has  been  already  given  in  connexion  with  Dr. 
Patton's  testimony.] 

Dr.  Patton — recalled  by  Mr.  Randall — was  requested  to  examine 
the  list  of  names  appended  to  the  notice,  and  say  whether  any  of 
them  belonged  to  the  Old  School  party. 

Dr.  Patton  replied :  Some  of  the  gentlemen  whose  names  are 
appended  to  this  notice  are  of  what  is  called  the  Old  School  party. 
The  Rev.  Thomas  S.  Spencer  is  one. 

Mr.  Hubhell  inquired  for  the  piece  of  paper  which  was  torn  from 
the  top  of  the  copy  of  the  notice  which  Dr.  Patton  first  read. 

Mr.  Randall  replied  "Here  it  is;  I  am  willing  to  give  it  in  evi- 
dence if  my  friend  on  the  other  side  desires  it;  it  is  a  circular  in- 
tended to  accompany  the  notice. 

After  looking  over  the  paper,  Mr.  Hubbell  waived  the  subject, 
stating  his  willingness  that  it  should  be  rejected. 

Mr.  Randall  handed  to  the  court,  in  writing,  and  to  the  opposite 
counsel,  the  points  which  he  wished  to  prove  by  Judge  Jessup,  as 
follows : 

"That  in  the  course  of  negotiations  of  the  joint  committee  ap- 
pointed by  the  General  Assembly,  as  a  part  of  the  res  gesta,  Mr. 
Breckinridge  declared,  that  if  the  New  School  party  did  not  accept 
the  propositions  of  the  Old  School,  he  would  the  next  day,  in  the 
General  Assembly,  move  to  excind  a  sufficient  number  of  synods 
from  the  General  Assembly,  to  secure  thereafter,  in  that  body,  the 


94 

predominance  of  the  Old  School."  That  the  other  four  nninisters 
of  this  part  of  the  joint  committee  assented  to  this  declaration. 
"That  he. did  accordingly  move  to  exclude  the  Synods  of  Geneva, 
Genessee  and  Utica.  That  the  General  Assembly  adopted  the 
motion  of  Mr.  Breckinridge.  That  Mr.  Breckinridge  made  a 
similar  declaration  on  the  floor  of  the  General  Assembly." 

Mr.  Randall  remarked,  the  court  would  perceive  that  the  paper 
related  to  a  declaration  made  in  a  meeting  of  the  committee.  It 
is  said  that  it  is  only  the  act  of  an  individual.  But  we  wish  to 
show  an  entire  want  of  correspondence  between  the  proposals  of 
the  Old  School  party  and  their  real  object.  The  opposite  counsel 
have  gone  at  length  into  an  examination  respecting  the  ex  farte 
declaration  of  Mr.  Waterbury,  a  gentleman  not  present  in  the 
Assembly  of  1837,  nor  affected  by  their  proceedings.  Now,  we 
wish  to  exhibit  the  acts  of  the  individual  who  moved  for  this  com- 
mittee, one  who  was  the  mouth-piece  and,  I  say  it  without  disre- 
spect, the  master  spirit  of  the  Old  School.  We  desire  to  show 
a  concerted  plan,  a  conspiracy,  to  exclude  from  their  rights  and 
privileges  in  the  Presbyterian  Church,  certain  synods,  which, 
in  pursuance  to  this  concert,  were  subsequently  cut  off",  without 
trial  and  without  notice.  This  is  the  great  feature  of  this  case. 
Here  was  a  violation  of  the  great  principle  that  none  shall  be  con- 
demned without  a  hearing.  On  this  declaration  depends  the  cha- 
racter of  the  acts  excluding  the  four  synods.  A  committee  to 
agree  upon  terms  of  amicable  division,  was  appointed  on  the 
motion  of  the  individual  in  question.  On  the  reception  of  their 
report  came  the  act  of  exclusion;  or,  as  one  of  the  counsel  on  the 
other  side  has  not  inappropriately  termed  it,  the  detrusion.  We 
wish  to  show  that  a  menace  was  distinctly  offered,  and  the  act 
threatened  subsequently  consummated.  This  witness,  appealing  to 
the  book,  called  for  an  accusation  and  for  trial.  His  appeal  was 
met  by  the  previous  question.  The  Supreme  Governor  of  the  uni- 
verse has  prescribed  a  different  rule  for  dealing  with  offenders,  and 
sanctioned  it  by  his  own  example.  The  words  of  the  Omniscient 
himself  were  to  Adam,  "Where  art  thou?"  "What  hast  thou 
done  1"  Even  he,  with  a  perfect  knowledge  of  all  things,  would 
not  pass  sentence  upon  frail,  fallible  man,  without  a  hearing.  But 
here  are  venerable  fathers  of  the  church,  born  and  reared  in  its 
communion,  detruded  unheard.  This  is  the  very  gravamen  of  the 
charge.  The  exclusion  of  these  trustees,  superseded  by  our  ap- 
pointment, fixes  no  stain  upon  their  character.  The  exalted  cha- 
racter of  the  man  so  often  alluded  to  at  the  head  of  the  list  of  those 
thus  superseded  is  a  sufficient  proof  that  we  contemplated  no  such 
stain.  Our  object  was  only  to  try  whether  60,000  communicants, 
599  churches  and  500  ministers  can  be  detruded,  thrust  out  from 
all  their  rights  and  privileges,  without  trial  or  even  the  knowledge 
of  an  accusation.  On  this  ground  the  present  testimony  is  offered. 
I  consider  it  the  most  interesting  part  of  our  inquiry  and  vital  to 
our  cause.  I  hope  your  honour  will  allow  a  full  development  of 
the  facts  in  the  case. 

Mr.  Wood  addressed  the  court. — The  question  is  raised  whether 


95 

this  evidence  is  material ;  but  the  court  will  not  nicely  scan  its 
nature  to  decide  whether  it  is  material,  but  rather  admit  it  and 
leave  its  bearing  to  the  jury.  I  will  attempt  to  show  its  applica- 
tion to  this  case.  Having  organized  ihe  General  Assembly  of  1838, 
under  circumstances  involving  some  unusual  proceedings,  we  have 
to  prove  that  in  those  proceedings  we  were  right.  This  is  essential 
to  our  cause.  A  moderator  and  two  clerks  were  removed  and 
others  elected  in  their  place.  We  now  wish  to  show  our  reason 
for  this  transaction.  It  was  this  :  several  commissioners  to  that 
Assembly  from  certain  presbyteries  belonging  to  the  Presbyterian 
Church,  and  up  to  that  time  uniformly  recognised  as  a  part  of  that 
church,  whose  rights  had  never  been  disputed,  presented  their 
commissions  to  the  proper  officers,  the  clerks,  and  were  rejected, 
not  for  any  informality  in  the  documents,  not  for  any  contest  re- 
specting their  election,  but  in  obedience  to  an  illegal  mandate. 
When  we  demanded  the  enrolment  of  their  names,  the  moderator 
refused  to  put  to  the  house  motion  after  motion,  made  for  this  ob- 
ject, saying  on  one  occasion,  to  a  person  tendering  his  commission, 
"  We  do  not  know  you."  Further,  he  refused  to  put  to  the  house, 
appeals  from  his  decision.  After  these  acts  the  members  appointed 
a  new  moderator  and  new  clerks.  Their  right  to  do  so  is  not  now 
to  be  decided.  The  act  was  within  the  power  of  the  Assembly, 
and  we  assign  as  the  cause  of  this  act,  a  deliberate  plan,  precon- 
certed by  a  portion  of  the  Assemblies  of  1837  and  1838,  to  exclude 
the  commissioners  in  question.  Resolutions  were  passed  in  1837, 
cutting  off  from  the  church  the  synods  from  which  these  commis- 
sioners came.  What,  then,  is  our  present  object?  It  is  to  prove 
a  determined  purpose,  a  conspiracy  of  the  Old  School,  carried  out 
by  their  clerks  and  moderator,  to  maintain  the  measures  of  exci- 
sion by  excluding  these  commissioners.  How  are  we  to  prove 
this?  Will  it  be  said  that  these  men  would  have  been  admitted  at 
a  later  period  ?  Was  it  not  the  fixed  purpose  of  the  Old  School  to 
exclude  them  forever?  Can  anyone  doubt  it?  The  pledge  de- 
manded from  the  clerks  demonstrates  it.  That  clinches  the  nail. 
To  prove  this  preconcerted  plan  we  propose  to  show  a  threat  pro- 
claimed in  a  committee  of  the  General  Assembly,  and  afterwards 
executed  in  the  body  itself.  A  declaration  by  a  member  of  the 
Old  School  portion  of  the  committee,  that  unless  there  was  a  con- 
sent by  the  other  portion  to  an  immediate  division  of  the  church, 
without  consultation  with  the  presbyteries,  a  future  preponderance 
of  the  Old  School  party  in  the  Assembly  would  be  secured  by  their 
cutting  off  a  portion  of  the  other  party.  And  is  not  this  material 
evidence,  showing  the  reason  of  the  subsequent  acts  of  excision, 
a  deliberate  design  and  preconcerted  plan?  The  declarations 
which  we  offer  in  evidence,  are  not  those  of  an  obscure  member,  of 
a  mere  cipher,  of  a  dough-faced  man,  but  of  the  head,  the  prime 
mover,  the  very  Coryphceus  of  the  party.  We  offer  to  prove  that 
he  held  out  at  the  time  a  distinct  menace,  that  if  the  terms  proposed 
were  not  acceded  to,  the  very  next  act  of  the  Assembly  would  be 
the  total  exclusion  of  certain  members.  If,  then,  it  is  proper  that 
this  conspiracy  should  be  proved  at  all,  how  are  we  to  prove  it. 


96 

unless  by  evidence  like  that  now  offered,  renaarks  made  at  the  time, 
in  the  coui'se  of  action  in  the  committee  room  and  in  the  house. 
The  resolutions  and  proposals  made  by  the  two  portions  of  the 
committee,  which  we  exhibited  from  the  records,  do  not  show  the 
design  of  those  who  passed  the  excinding  acts.  We  mean  to  show 
a  fraudulent  design.  I  intend  no  disrespect  to  these  gentlemen ; 
they  undoubtedly  thought  that  they  were  doing  right.  But  their 
measures  were  illegal  and  unjust  in  the  eye  of  the  law  and  in  that 
sense  at  least  they  were  fraudulent.  How  then  is  all  this  to  be 
proved  except  by  contemporaneous  declarations?  There  is  no 
other  mode.  The  excinding  resolutions  give  us  only  the  bare  fact 
of  the  excision.  But  is  it  said  that  the  acts  of  1837  had  nothing  to 
do  with  those  of  1838;  that  if  the  roll,  prepared  by  the  clerks, 
was  defective,  the  Assembly  would  have  completed  it?  Never! 
And  this  very  thing  we  wish  to  demonstrate,  by  showing  a  design, 
a  preconcerted  plan.  This  can  be  proved,  in  this  case,  only  by  the 
declarations  of  those  active  in  arranging,  counselling  and  executing 
the  measure.  Such  declarations  were  made  in  a  committee  of  the 
house,  by  Mr.  Breckinridge,  a  leader  of  the  Old  School ;  were  ac- 
quiesced in  by  his  party  and  verified  by  subsequent  acts,  adopted 
with  the  express  design  of  securing  a  majority.  Is  your  honour 
prepared  to  say  that  evidence  of  this  is  not  material,  to  show  that 
we  were  right  in  removing  the  moderator  and  clerks,  who,  in  con- 
summation of  this  design,  refused  seats  to  regularly  appointed  com- 
missioners? Is  it  any  where  pretended  that  the  excinding  resolu- 
tions are  valid  ?  No  member  of  this  bar  will  say  it.  The  counsel 
for  our  opponents  themselves  will  not  say  it.  They  wisely  strive 
to  keep  those  acts  from  view.  But  they  must  be  dragged  forth  into 
the  light  of  day.  The  design  with  which  those  acts  were  passed 
has  an  important  bearing  on  this  case;  and  we  apprehend  that  it 
cannot  be  proved  except  by  such  declarations.  If  the  court  shall 
be  of  this  opinion  it  will  admit  the  testimony. 

Mr.  Preston  replied :  I  understand  the  proposition  to  be,  to  intro- 
duce certain  declarations  of  Mr.  Breckinridge,  an  individual  mem- 
ber of  the  committee,  to  show  the  design  with  which  the  General 
Assembly  performed  a  certain  act.  We  object,  on  the  ground  that 
an  individual  declaration  is  entirely  incompetent  to  prove  the  designs 
of  the  Assembly.  Are  the  acts  of  record  to  be  expounded  by  oral  tes- 
timony of  the  declarations  of  individuals,  the  declarations  of  a  single 
man,  made  not  in  debate  in  the  house,  but  in  a  subsidiary  meeting  of 
a  portion  of  its  members?  x'Vre  these  to  be  brought  forward  to  explain 
public  and  recorded  acts  of  a  judicial  assembly?  Does  the  testimony 
offered  contradict  the  record,  or  is  it  consistent  with  it?  Here  is  a 
dilemma.  If  consistent,  why  seek  to  confirm  that  which  is  certain  ? 
Why  bolster  up  what  is  already  fully  supported  ?  If  contradictory, 
shall  an  individual  declaration  overthrow  the  solemn  record  ?  Shall 
secondary  evidence  destroy  the  primary?  Whoever  heard  the 
public  proceedings  of  a  body  expounded  by  private  declarations? 
Would  your  honour,  sitting  in  judgment  upon  an  act  of  the  legis- 
lature, allow  your  decision,  as  to  its  validity,  or  the  power  of  the 
body  to  pass  it,  to  be  influenced  by  declarations  of  individual  mem- 


97 

bers  made  upon  the  floor  of  the  legislature  1  Much  less  would  you 
by  declarations  uttered  in  a  committee  room.  Even  the  concur- 
rence of  the  views  of  all  the  members  of  the  body,  if  those  views 
did  not  appear  on  the  record,  would  not  govern  your  decision.  I 
venture  the  assertion,  deriving  a  word  from  a  theological  source, 
as  appropriate  to  a  theological  controversy, — I  venture  the  asser- 
tion, that  the  exegetical  history  of  no  public  body  was  ever  intro- 
duced to  explain  its  recorded  acts.  But  another  serious  objection 
depends  on  considerations  more  important.  If  we  examine  the 
circumstances  of  the  case,  we  see  more  general  grounds  for  reject- 
ing this  testimony.  In  the  decision  of  yesterday,  admitting  as  evi- 
dence the  minutes  of  1837,  I  acquiesce.  To  show  the  exclusion  of 
the  synods,  that  record  is  competent  evidence.  But  for  no  other 
purpose.  To  exhibit  other  acts,  or  a  fraudulent  design  in  those 
performing  these  acts,  it  is  clearly  incompetent.  The  issue  pre- 
sented, precludes  the  admission  of  such  testimony. 

In  the  pleadings,  there  is  a  simple  assertion  and  denial  of  a  fact, 
the  fact,  that  tiie  relators  in  this  suit  were  elected  to  the  office  of 
trustees  by  the  General  Assembly  of  the  Presbyterian  Church  in 
the  United  States.  We  deny  this  fact,  and  here  is  the  sole  issue 
between  the  parties.  It  devolves,  therefore,  on  the  plaintiffs,  to 
prove  the  regular  and  constitutional  organization,  the  proper  autho- 
rity and  power  of  the  Assembly  by  which  they  were  elected.  That 
power  and  authority  we  contest.  This  is  the  naked  issue.  If  they 
prove  that  to  be  the  only  true  General  Assembly,  there  is  an  end 
of  our  cause.  We  are  not  attempting  to  set  up  an  opposition 
General  Assembly,  to  show  that  the  Old  School  Assembly  of  1838 
was  the  constitutional  Assembly.  We  rest  on  broader  grounds, 
and  are  content  with  a  mere  negation  of  the  facts  claimed  on  the 
other  side.  However  irregular  or  unconstitutional,  however  false 
or  fraudulent  may  have  been  the  proceedings  of  the  Assembly  of 
1837,  and  the  incipient  measures  of  1838,  and  indeed  of  ail  the  acts 
of  every  General  Assembly  from  the  year  1800  until  now,  this  does 
not  assist  their  proof  in  the  least  degree.  We  are  anxious  to  keep 
to  the  real,  the  naked  issue.  We  have  not  to  maintain  the  affirma- 
tive of  one  issue  and  they  the  negative,  and  the  negative  of  another 
issue  of  which  they  maintain  the  affirmative.  We  come  into  court 
as  defendants,  and  claim  all  the  privileges  of  defendants.  Could 
they  prove  our  proceedings  false  and  foul  and  fraudulent,  this 
would  not  establish  their  claim.  The  venerable  gentleman  who 
sits  near  me.  Dr.  Green,  whom  they  propose,  under  the  authority 
of  their  Assembly,  to  detrude,  employing  a  word  previously  intro- 
duced, to  detrude  from  the  board  of  trust,  holds  his  office  under  the 
original  appointment  of  the  legislature,  altogether  independent  of 
the  Assembly  of  1837,  and  of  every  other  General  Assembl}^  He 
is  above  all  imputation  of  irregularity  in  his  appointment.  We  have 
then  nothing  to  do  or  to  prove.  It  is  for  our  opponents  to  show  the 
paramount  power  by  which  they  strike  down  this  venerable  man. 
Why  then  investigate  the  acts  of  the  Assembly  of  1837  ?  Not  one 
of  those  whom  they  would  eject,  holds  office  under  that  Assembly. 
Though  he  to  whom  I  have  just  alluded,  is  the  only  relic  of  the 

9 


98 

original  board,  yet  these  defendants  all  claim  under  General  As- 
semblies on  which  no  imputation  rests.  The  proceedings  of  1837, 
therefore,  cannot  affect  either  of  them. 

Let  us  look  at  the  facts  of  this  case,  which  are  conceded  on  all 
sides.  Each  General  Assembly  closes  its  existence  at  the  close  of 
its  session,  is  dissolved,  vanishes  in  thin  air. 

The  earth  hath  bubbles  as  the  ocean  hath, 
And  these  are  of  them. 

But  is  there  nothing  left?     No  prolific  root,  no  germ  of  a  future 
existence,  no  nucleus  around  which  a  succeeding  body  may  be 
gathered  'i     Yes,  there  is  such  a  prolific  root,  such  a  germ,  a  nu- 
cleus for  a  new  organization.     This  is  the  surviving  power  of  the 
moderator  and  of  the  clerks.     In  1837  an  Assembly  was  dissolved. 
In  1838  another  was  organized.     But  who  met  for  this  organiza- 
tion?    And  why?     The  elements  of  which  the  Assembly  was  to 
be  formed,  met  in  pursuance  of  an  act  of  the  previous  Assembly, 
under  the  auspices  of  the  moderator's  still  surviving  authority,  and 
in  the  presence  of  the  clerks.     These  were  the  materials  around 
which  the  new  organization  was  to  be  made.     In  these  facts  we 
all  agree;  even  our  opponents,  by  the  advice  of  counsel  "learned 
in  the  law,"  admit  the  validity  of  these  proceedings.   So  far  all  was 
done  regularly,  but  now  came  "  the  accepted  time."     Now  the 
period  had  arrived  for  a  new  state  of  things  to  come  into  existence. 
Up  to  this  time,  Dr.  Mason  turned  toward  the  moderator,  and  ad- 
dressed the  moderator,  the  moderator  not  yet  "  shorn  of  his  of- 
fice."    But  the  refusal  to  put  the  motion  and  to  put  the  appeal, 
derogated  from  his  power,  and  by  this  refusal  was  he  thus  shorn. 
The  elements  of  the  incipient  organization  were  thrown  upon  the 
amplitude  of  their  original  powers.     Previous  to  this,  we  are  all 
upon  the  same  road.     What  then  is  the  relevancy  of  the  testimony 
now  offered?     Suppose,  that  in  organizing  the  new  Assembly,  the 
moderator  failed  in  his  duly — suppose,  that  he  committed  a  funda- 
mental error,  and  it  was  necessary  to  remove  him ;  if  the  act  per- 
formed by  him  was  illegal,  pure  motives  may  not  shield  it  from 
condemnation ;  if  it  were  legal,  neither  wrong  motives,  nor  fraudu- 
lent design,  can  invalidate  it,  nor  render  less  violent,  disorderly  and 
revolutionary,  the  acts  of  the  other  party.     No  matter,  then,  by 
what  motives  we  were  actuated,  what  concerted  plan  or  deter- 
mined purpose  we  had  formed.     I  need  not  then  vindicate  any 
declaration,  or  any  menace.     Were  it  necessary,  I  would  cheer- 
fully undertake  the  task  of  vindicating  every  word  uttered  by  Mr. 
Breckinridge.     I  would  show  them  to  be  perfectly  consistent  with 
a  Christian  and  a  Presbyterian  spirit.   But  he  does  not  desire  it,  he 
does  not  need  it.     But  we  object  to  the  waste  which  the  introduc- 
tion of  such  testimony  would  produce;  the  waste  of  words,  the 
waste  of  time,  and,  worst  of  all,  in  a  cause  like  this,  the  waste  of 
temper,  in  the  investigation  of  collateral  issues.    Should  it  be  neces- 
sary, we  would  not  shrink  from  the  vindication  of  our  words.     Be- 
fore I  close,  allow  me  a  single  remark  on  a  position  which  will  be 
taken  in  this  controversy.     Our  friends  on  the  other  side  may  as 


99 

well  be  advised  of  it  now  as  at  any  time,  and  therefore  I  throw  it 
out.  We  shall  contend  that  no  General  Assembly  has  been  regu- 
larly organized  since  the  year  1800.  The  act  of  the  legislature  in 
1799,  incorporated  "the  trustees  of  the  ministers  and  elders  consti- 
tuting the  General  Assembly  of  the  Presbyterian  Church  in  the 
United  States  of  America."  Are  not  the  words  potential?  Was 
not  the  act  designed  to  incorporate  the  trustees  of  Presbyterians, 
and  theirs  only?  But  in  1801,  the  Assembly  adopted  articles  by 
which  Congregationalists  were  allowed  a  representation  in  that 
body.  It  may  be  seriously  questioned  whether  this  were  not  an 
avoidance  of  the  trust.  Had  Baptists,  Episcopalians,  Methodists 
and  Catholics  been  thus  introduced,  would  it  have  been  still  the 
Assembly  of  Presbyterians  to  whom  the  charter  was  granted?  Or 
to  make  the  case  a  little  stronger,  suppose  that  those  thus  received 
to  our  communion,  had  by  their  numbers,  their  dexterity,  and  the 
*'  advice  of  counsel  learned  in  the  law,"  ousted  us,  proclaimed  them- 
selves to  be  the  true  General  Assembly,  and  obtained  counsel  to 
come  into  this  court  and  support  their  pretensions — would  your 
honour  say  that  this  was  the  body  to  whom  that  charter  was 
given?  That  act  contemplated  none  but  Presbyterians,  thorough- 
paced, true-blue  Presbyterians.'  It  does  appear  to  me,  that  every 
Assembly  since  1801  may  have  been  vitiated  by  this  introduction 
of  heterogeneous  members  into  its  body. 

But,  to  recur  to  the  point  in  hand,  our  opponents  must  prove 
their  paramount  authority.  To  do  this,  they  would  derive  no  aid 
from  proving  void  the  acts  of  all  previous  assemblies;  and  we 
object  to  this  attempted  exegetical  exposition  of  the  proceedings  of 
the  Assembly  of  1837.    It  must  prove  fallacious,  and  may  be  fatal. 

Judge  Rogers  said:  The  proceedings  of  the  Assembly  of  1837, 
have  a  manifest  bearing  on  the  issue  in  this  case ;  but  I  cannot  per- 
ceive how  the  acts  or  declarations  of  individual  members  of  that 
body  can  properly  be  admitted  to  explain,  or  in  any  way  to  affect 
those  proceedings.     I  must  therefore  exclude  the  testimony. 

Mr.  Randall  requested  Judge  Jessup  to  state  all  that  he  knew  in 
regard  to  the  pledge  exacted,  by  the  Assembly  of  1837,  from  its 
officers,  that  they  would  carry  out  the  excinding  resolutions,  in 
organizing  the  Assembly  of  1838. 

Mr.  Hubbell  objected — that  parol  evidence  on  such  a  subject  was 
inadmissible,  the  minutes  of  the  Assembly  itself  being  the  best  evi- 
dence. 

Mr.  Randall  replied :  We  are  not  bound  by  the  minutes  to  prove 
what  does  not  appear  on  them.  We  propose  to  show  that  the 
officers  of  the  Assembly  of  1837,  after  the  passage  of  the  excinding 
resolutions,  were  called  upon  for  a  pledge  that  in  organizing  the 
General  Assembly  of  1838,  they  would  carry  out  those  resolutions ; 
that  while  the  motion  to  this  effect  was  before  the  house,  the 
required  pledge  was  given  by  those  officers,  and  then  the  motion 
withdrawn ;  that  these  proceedings,  entered  on  the  minutes  by  the 
clerks,  were  afterward  withheld  from  the  records  and  from  publi- 
cation by  certain  gentlemen  sympathising  with  the  Old  School 


100 

party.  In  such  a  case  are  we  bound  by  the  minute?  Is  it  infal- 
lible ? 

The  Couj't  here  inquired  for  the  record,  and  Mr.  Randall  called 
Dr.  John  MDoicell,  the  Stated  Clerk  of  the  Assembly  of  1837, 
"  whom,"  he  said,  "  vi'e  have  summoned  by  a  subpoena  duces  tecum" 
to  produce  the  original  record.  It  appeared  that  Dr.  M'Dowell 
was  not  in  court. 

Mr.  Randall  handed  to  the  Court  the  Old  School  minutes  of 
1838,  and  pointing  to  page  15,  said:  There  is  a  record  which  will 
show  the  point  in  relation  to  which  testimony  is  now  offered. 

Suppose  that  a  resolution  offered  to  the  Assembly  is  subsequently 
withdrawn,  may  we  not  prove  its  purport,  except  by  the  minutes? 
May  I  not  prove,  by  a  witness  under  oath,  the  contents  of  Mr. 
Ewing's  resolution? 

The  part  of  the  record  on  the  Old  School  minutes  of  1838,  re- 
ferred to  by  Mr.  Randall,  is  as  follows : 

The  committee  appointed  to  examine  into  a  supposed  discrepancy  between  tlie 
printed  and  manuscript  minutes  of  the  General  Assembly  of  1837,  made  a  report, 
which  was  read,  accepted,  amended,  and  adopted,  and  is  as  follows,  viz. : 

The  committee  jiave  collated  the  orig'inal  records  as  they  were  made  by  the 
Permanent  Clerk,  approved  of  by  the  Assembly,  and  put  into  the  hands  of  the 
Committee  of  Revision,  with  the  printed  minutes,  and  find  the  following  omission 
in  the  latter,  viz. : 

A  resolution  offered  by  Mr.  Ewing,  to  appoint  a  committee  to  confer  with  the 
officers  of  the  Assembly,  who  compose  the  Committee  of  Commissions,  to  procure 
from  them  a  pledge  to  carry  out  the  action  of  the  Assembly  in  their  official  charac- 
ter to  its  full  accomplishment;  which  resolution  was  subsequently  withdrawn,  upon 
satisfactory  statements  before  the  Assembly,  on  the  part  of  said  officers,  of  their 
intention  to  do  as  the  Assembly  should  direct  them,  which  were  also  omitted  in 
the  printed  minutes. 

Your  committee  impute  no  blame  to  the  committee  appointed  by  the  Assembly 
to  revise  and  prepare  the  minutes  for  publication,  on  account  of  this  omission, 
although  they  are  of  opinion  that  it  would  have  been  better  to  have  published  the 
entire  record.  To  prevent  future  mistakes  in  this  matter,  your  committee  would 
recommend  to  the  Assembly  the  adoption  of  the  following  resolution,  viz. : 

Resolved,  That  the  records  of  the  Assembly  be  published  in  all  respects  substan- 
tially as  they  are  approved  by  that  body,  when  submitted  by  the  Permanent  Clerk, 
and  that  in  no  case  shall  any  erasure  be  made  in  the  manuscript  records,  except  by 
the  express  order  of  the  Assembly  itself. 

Your  committee  would  further  recommend  that  the  minutes  be  read  and  care- 
fully corrected  at  the  opening  of  each  session  of  the  Assembly,  and  that  no  subse- 
quent revision  or  alteration  be  permitted,  except  by  vote  of  the  Assembly.  Also, 
that  the  Stated  Clerk  be  directed  to  record,  on  the  transcribed  minutes,  at  their 
proper  place,  on  interleaved  blank  pages,  the  whole  of  the  omitted  minutes  alluded 
to  in  this  report. 

The  Court  ruled  that  the  record  as  it  stands  should  first  be  given 
in  evidence,  and  that  it  might  afterward  be  corrected. 

jMr.  Randall  said  :  Dr.  M'Dowell  will  bring  it  in  the  morning. 
The  court  adjourned. 

Friday  morning,  March  8. 

Mr.  Randall  called  Dr.  John  M'Dowell  to  produce  that  part  of  the 
original  Minutes  of  the  Assembly  of  1837,  referred  to  yesterday, 
relating  to  the  pledges  given  by  the  clerks  to  carry  out  the  deci- 
sions of  the  Assembly  in  regard  to  the  excinded  synods. 


101 

Dr.  MDowell  presented  the  original  minutes,  and  Mr.  Randall 
offered  them  in  evidence,  and  proposed  to  read  them. 

A  colloquy  between  the  counsel  here  ensued,  Mr.  Ingersoll,  for 
the  respondents,  objecting,  "  not  to  the  papers  being  read,  but  to 
their  being  read  as  the  minutes  of  the  Assembly,"  while  he  claimed 
that  they  were  only  the  rough  drafts  prepared  by  the  clerks,  for 
approval  or  correction  by  the  house;  and  Mr.  Randall,  for  the 
relators,  claiming  that  they  were  proper  to  be  read,  as  they  were 
the  papers  produced  by  the  witness,  who  was  served  with  subpana 
duces  tecum,  and  directed  to  produce  the  minutes;  and  "they  are 
the  minutes." 

Mr.  Randall  then  read  from  these  papers  [remarking  on  certain 
erasures,  as  he  read]  as  follows: 

Tuesday  morning',  June  6th. — Mr.  Ewing-  offered  the  following'  resolution,  viz: 
Resolved,  That  a  committee  be  appointed  to  confer  with  the  officers  of  this  As- 
sembly, who  compose  the  Committee  of  Commissions,  and  to  obtain  and  communi- 
cate to  this  body,  their  explicit  promise  or  refusal,  to  carry  out,  in  all  its  parts,  the 
reform  entered  upon  during-  our  present  sessions,  by  the  full  and  exact  perform- 
ance on  tlieir  part,  as  ministerial  officers  of  this  body,  of  all  the  duties  either  ex- 
pressly directed,  or  necessirily  implied,  by  the  action  of  the  Assembly,  for  the 
purification  of  tlie  church,  and  n  hicli  are  required  in  giving-  entire  efficacy  to  its 
acts,  in  all  their  parts,  and  especially  in  completing-  the  roll  of  the  next  and  subse 
quent  Assemblies. 

After  debate,  adjourned  till  this  afternoon  at  half  past  tlu-ee  o'clock. 
Concluded  with  prayer- 
Tuesday  afternoon,  half  past  three  o'clock. — The  Assembly  met,  and  was  opened 
with  prayer.     The  minutes  of  the  last  session  were  read. 

The  Assembly  took  up  the  unfinished  business  of  this  morning-,  viz:  the  resolu- 
tion respecting-  the  duty  of  the  Committee  of  Commissions. 

The  Stated  Clerk  asked  and  obtained  permission  to  make  a  statement  in  relation 
to  his  duty  as  a  member  of  the  Committee  of  Commissions. 

The  Pei-manent  Clerk  obtained  the  same  permission.  Then  Mr.  Ewing  had 
leave  to  withdraw  his  resolution. 

Mr  Randall  said,  these  are  the  rough  minutes  made  up  by  the 
clerk.  What  I  have  read,  was  not  the  original  resolution  of  Mr. 
Ewing,  but  a  copy.  I  will  inquire  of  Dr.  M'Dowell,  what  became 
of  the  original. 

Mr.  Ingersoll,  for  the  respondents,  objected  to  the  witness  being 
called  on. 

The  objection  was  overruled  by  the  Court ;  and  Dr.  M'Dowell 
said  that  he  never  had  the  original  in  his  possession. 

The  Rev.  John  M.  Krebs,  Permanent  Clerk  of  the  Assembly  of 
1837,  being  inquired  of  respecting  the  paper  which  he  had  read, 
stating  his  views  of  duty  as  clerk,  in  relation  to  the  excindino-  acts, 

said  that  the  original  of  that  paper  was  not  in  his  possession that 

he  had  sent  it  to  the  printer — but  could  furnish  an  exact  copy. 

Mr.  Randall  then  offered  a  copy  of  the  paper,  as  published'in  the 
Philadelphia  Observer  of  December  14,  1837 — Mr.  Krebs  statino- 
that  he  had  no  doubt  of  its  perfect  correctness.  It  was  read  by 
Mr.  Randall,  as  follows : 

The  undersigned,  Permanent  Clerk  of  the  General  Assembly,  begs  leave  to 
state  to  the  Assembly,  that  he  has  no  other  reluctance  to  answer  the  question 
proposed  by  the  resolution  offered  this  morning-  by  Mr.  Ewing,  than  that  arisine- 

9* 


102 

from  the  fear  of  the  probability,  strengthened  by  the  course  of  debate  on  this  reso- 
lution, that  his  readiness  to  reply,  and  the  subject  matter  of  his  reply,  in  con- 
nexion with  the  phraseology  of  the  resolution,  may  be  misunderstood  and 
misrepresented,  where  there  is  no  opportunity  for  explanation.  But  in  respect  to 
the  precise  object  of  the  question  itself,  as  it  specifically  applies  to  the  duties  of 
the  Permanent  and  Stated  Clerks,  as  defined  in  their  appointment  as  a  Committee 
of  Commissions,  he  has  no  hesitation  in  saying,  that  he  fully  recognizes  the  author- 
ity of  the  General  Assembly  to  instruct  its  officers,  and  to  ascertain  that  they  un- 
derstand their  duties  as  ministerial  officers  of  this  body,  both  in  relation  to  the 
present  Assembly,  anA  to  futiu-e  Assemblies,  of  which  they  continue  to  be  officers, 
until  they  shall  have  been  formally  removed. 

He  considers  it  a  dangerous  principle,  to  confide  such  discretionary  power  to  the 
committee  of  commissions,  in  respect  to  the  action  of  this  or  of  any  subsequent 
General  Assembly,  as  it  was  argued  this  morning  that  this  committee  possessed. 
Five  years  ago,  the  undersigned  first  iiad  the  honour  to  sit  in  this  house  as  a  com- 
missioner from  the  Presbytery  of  New  York,  and  three  times  recorded  his  vote 
adverse  to  the  resolutions  passed  by  the  Assembly  of  1832,  creating  the  then  Se- 
cond Presbytery  of  Philadelphia,  on  the  gvound  that  the  Assembly  had  no  consti- 
tutional right  to  form  that  presbytery.  Yet  on  the  pi-inciple  assumed  this  morning, 
in  this  discussion,  the  undersigned,  if  he  had  been  a  member  of  the  committee  of 
commissions  in  the  year  1833,  might  have  excluded  the  commissioners  from  that 
presbytery  from  seats  in  the  General  Assembly,  in^.he  exercise  of  the  discretion  im- 
phedlv  attributed  to  the  committee,  of  judging  and  acting  on  their  private  views 
of  the  constitutionality  of  the  act  of  the  Assembly,  electing  that  presbytery.  He 
believes,  that  after  the  will  of  the  Assembly  is  expressed,  the  committee  have  no 
discretion  in  the  case,  and  have  no  right  (as  for  himself  he  has  no  desire)  to  assume 
so  high  a  responsibility,  when  acting  as  a  mere  executive  officer.  The  constitu- 
tionality of  the  business,  which  is  the  subject  matter  of  commands  intrusted  to  him 
to  execute,  is  not  a  question  for  him,  but  for  the  Assembly  to  decide ;  and  can  be 
a  question  for  him  only  as  an  individual  member  of  this  house,  when  occupying*  a 
seat  in  it  as  a  commissioner.  He  considers  himself,  therefor^,  simply  as  an  agent — 
a  ministerial  officer  of  the  Assembly,  to  record  their  proceedings,  and  to  do  such 
other  things,  (including  the  duty  of  a  member  of  the  Committee  of  Commissions,) 
as  have  been  specified  in  the  acts  of  this  and  of  preceding  Assemblies,  creating 
and  defining  the  duties  of  his  office.  This  opinion  he  has  expressed  in  private  to 
members  of  both  parties  in  the  house. 

He  understands  it  therefore  to  be  his  duty,  as  a  member  of  the  Committee  of 
Commissions,  and  especially  in  view  of  the  rules  adopted  this  morning,  on  the 
motion  of  Ur.  Alexander,  (and  he  will  act  on  that  understanding,  imless  otherwise 
expressly  directed  by  the  Assembly,)  to  enrol  only  such  commissioners  to  the  next 
Assembly  as  shall  come  from  presbyteries,  now,  or  at  the  close  of  this  Assembly, 
recognized  to  be  component  and  inlegi-al  parts  of  the  Presbyterian  Church  ;  and 
that,  to  the  Assembly  so  constituted,  when  duly  organized  for  the  ti-ansaction  of 
business,  it  will  be  his  duty  to  report  the  names  of  persons  claiming  to  be  com- 
missioners from  presbyteries  that  may  be  formed  during  the  intervening  year,  or 
from  presbyteries  belonging  to  the  synods  which  have  been  declared  by  the  As- 
sembly to  be  out  of  the  Presbyterian  Church,  should  such  persons  present  com- 
missions to  the  committee. 

JouN  M.  Krkbs. 
Philadelphia,  June  6th,  1837. 

Mr.  Ingersoll,  for  the  respondents,  proposed  to  show  by  the  clerks, 
what  was  the  true  character  of  the  papers  which  had  been  read  as 
minutes  respecting  the  resolution  of  Mr.  Ewing  in  1887.  M)\ 
Randall  objected — that  it  was  not  in  time,  but  waived  the  objection, 
and  asked  the  explanation  from  Dr.  M'Dowell  Dr.  M'Dowell  re- 
ferred him  to  Mr.  Krebs,  by  whom  the  papers  were  written. 

Rev.  John  M.  Krebs  then  read  the  minutes  substantially,  as  pre- 
viously read  by  Mr.  Randall,  stating,  these  are  the  words  which  I 
read  to  the  Assembly  for  their  approval.  In  this  form  the  minute 
■was  approved  as  correct  without  a  word  of  dissent.  These  minutes 
are  prepared  while  debate  is  going  on,  and  I  subsequently  make 


103 

erasures  and  interlineations,  to  make  the  record  correct,  to  read  at 
the  opening  of  tfie  next  session  of  the  Assembly.  Such  erasures 
are  very  frequent.  Sometimes  they  are  made  by  order  of  the  As- 
sembly. I  do  not  know,  except  from  report,  who  made  the  cancel- 
lation on  these  papers.  It  was  not  done  by  me,  nor  did  the  As- 
sembly order  it.  The  Assembly  of  1838  ordered  the  cancellated 
portions  to  be  recorded  on  the  transcript  of  the  minutes.  [Mr. 
Randall  objecting  to  the  witness  going  into  the  acts  of  1838,  and 
Mr.  Huhhell  claiming  the  evidence  to  show  that  the  cancellation 
was  unauthorized.  Judge  Rogers  said  it  might  be  given  as  relatinfi^ 
to  the  minutes  of  1837.]  Mr.  Krebs,  interrogated  by  Mr.  Ingersoll, 
proceeded — the  paper  which  I  read,  stating  my  views  of  the  duty 
of  the  clerks,  I  asked  leave  to  have  inserted  in  the  minutes,  but  no 
motion  being  made  to  that  effect,  I  did  not  feel  at  liberty  to  insert 
it.  It  did  not,  therefore,  belong  to  the  Assembly,  and  I  afterwards 
published  it. 

Interrogated  by  Mr.  Randall,  the  witness  said  :  I  know  not 
where  the  original  of  that  paper  is.  I  requested  Mr.  Engles  to 
publish  it  in  the  Presbyterian,  and  gave  him  the  original.  I  read 
it  by  permission  before  Mr.  Ewing  withdrew  his  resolution,  first 
making  an  extempore  statement,  and  then  reading  the  paper.  I 
cannot  tell  where  the  original  of  Mr.  Ewing's  resolution  is.  Such 
papers  are  usually  destroyed  as  soon  as  copied.  The  copy  on  the 
minutes  is  correct. 

Dr.  John  M'Doivell,  interrogated  by  Mr.  Hubbell,  said  :  to  un- 
derstand how  the  marks  of  cancellation  occurred  on  these  papers, 
I  would  refer  you  to  page  49S  of  the  minutes  of  the  Assembly  of 
1837. 

"  The  Stated  Clerk,  witli  Dr.  Cuyler  and  Mr.  Grant  were  appointed  a  committee 
to  revise  the  Minutes,  and  prepare  them  for  publication." 

These  minutes,  on  the  rising  of  the  Assembly,  were  put  into  my 
hands,  either  as  stated  clerk,  or  as  chairman  of  the  committee. 
The  committee  met  several  limes  in  my  study  on  different  days, 
and  made  various  alterations,  striking  out  the  parts  which  you  see 
marked  with  a  cross.  The  obliterations  had  been  made  before. 
That  this  matter  may  be  understood,  I  should  say  that  it  has  been 
customary  for  the  whole  minutes  to  be  read  over  to  the  Assembly, 
when  they  are  finished,  but  occasionally  they  are  in  haste,  and 
have  several  times  appointed  a  committee  to  do  what  the  Assembly 
ought  to  do.  Sometimes  they  delegate  the  power  to  a  committee 
to  make  the  corrections.  It  was  under  such  powers  that  we  acted 
in  1837.  Mr.  Ewing's  motion  having  been  withdrawn,  we  thought 
that  it  ought  not  to  be  a  matter  of  record.  Mr.  Grant,  one  of  the 
members  of  the  committee,  differed  from  us  in  opinion,  on  this 
point.  The  pledge  given  by  Mr.  Krebs  I  never  have  had  :  it  never 
came  to  me  in  any  form.  As  soon  as  the  revision  was  completed, 
I  think  about  the  first  of  August,  the  minutes  were  sent  to  press. 

Interrogated  by  Mr.  Wood.  The  statements  made  by  the  clerks 
formed  no  part  of  the  minutes.  We  left  out  every  thing,  as  if  the 
transactions  had  never  happened.  The  remarks  made  do  not  now 
appear,  but  the  fact  that  they  were  made  does.     These  crosses 


104 

were  made  by  the  committee.     The  obliterations  I  know  nothing 
of. 

Interrogated  by  Mr.  Huhhell.  The  statement  which  I  made  was 
never  on  the  minutes.  The  statements  of  neither  of  the  clerks  was 
filed.  Mine  was  not  in  writing.  I  can  give  the  substance  of  it  if 
it  is  thought  proper. 

Judge  Jessup,  in  continuation. — My  recollection  is  that  the  matter 
was  as  it  has  been  stated.  In  the  forenoon  Mr.  Ewing  offered  his 
resolution ;  and  in  the  afternoon,  Dr.  M'Dowell  and  Mr.  Krebs 
offered  their  statements.  Dr.  M'Dowell  made  a  statement  of  his 
views  of  his  duty  as  clerk,  of  which,  though  I  cannot  repeat  the 
whole,  a  part  is  impressed  on  my  memory.  After  Mr.  Swing's 
resolution  had  been  discussed  for  some  time,  the  Assembly  adjourn- 
ed till  afternoon.  In  the  afternoon  Dr.  M'Douell  asked  leave  to  offer 
a  statement ;  and  said,  that  he  did  not  feel  willing  to  give  a  pledge, 
as  such,  to  the  Assembly;  but  would  state  his  views.  That  he  did 
not  think  he  could  properly  exercise  any  discretion  in  the  matter. 
That  he  was  only  a  ministerial  officer,  and,  as  such,  would  carry 
out  the  views  of  the  Assembly;  and  that  he  should  feel  himself 
bound  to  do  so,  as  long  as  he  held  the  office,  whatever  his  opinion 
might  be  as  an  individual.  It  is  impressed  on  my  mind  that  he 
added,  if  he  found  himself  so  situated  that  he  could  not  carry  out 
the  views  of  the  General  Assembly,  consistently  with  his  princi- 
ples, he  would  resign.  I  am  not  sure  that  he  said  so.  This  is  all 
I  recollect. 

When  Mr.  Ewing  rose  and  withdrew  his  resolution,  it  was  said 
either  by  him  or  some  other,  that  the  explanations  were  satisfac- 
tory; leave  was  asked  to  withdraw  the  motion,  which  was  granted 
by  a  vote  taken. 

The  plaintiffs  called  Rev.  Miles  P.  Squier,  to  prove  the  rejection 
by  the  clerks  of  the  commissions  from  the  presbyteries  within  the 
excinded  synods. 

Mr.  Squier,  interrogated  by  Mr.  Randall,  said  :  I  was  a  commis- 
sioner to  the  General  Assembly  of  1838,  from  the  Presbytery  of 
Geneva,  within  the  Synod  of  Geneva.  The  commissions  of  the 
commissioners  from  the  excinded  synods  were  handed  to  myself 
and  Judge  Brown,  of  Ohio,  on  Thursday  morning,  the  day  on 
which  the  Assembly  met,  and  were  by  us  tendered  to  the  clerks, 
Dr.  M'Dowell,  and  Mr.  Krebs.  Dr.  M'Dowell,  speaking  in  the 
name  of  the  committee  said,  "We  are  not  permitted  by  the  in- 
structions of  the  Assembly  to  receive  these  commissions ;  we  can- 
not do  it.  Were  I  to  exercise  my  own  judgment  I  might  act  very 
differently,  but  I  am  bound  by  the  instructions  of  the  Assembly." 

I  have  no  doubt  these  [a  file  of  papers  handed  to  the  witness  by 
Mr.  Randall,]  are  the  identical  commissions  which  Judge  Brown 
and  I  presented  to  the  clerks.  There  were  about  fifty  of  them. 
They  were  stated  to  be  commissions  from  presbyteries  within  the 
four  excinded  synods.  No  objection  was  made  to  their  form.  They 
were  not  received,  examined,  or  opened  by  the  clerks.  I  desired 
the  gentlemen  present  to  take  notice  of  the  refusal.  This  was  in 
the  committee-room  of  the  Seventh  Presbyterian  Church,  between 


105 

nine  and  ten  o'clock  in  the  morning,  the  place  and  time,  at  which 
it  had  been  advertised,  that  the  clerks  would  be  in  waiting  to  re- 
ceive commissions. 

Cross-examined.  Interrogated  by  M7\  Hubbell,  the  witness  said  : 
I  had  no  other  objection  to  say  to  Dr.  Elliott,  that  the  Presbytery 
of  Geneva  belonged  to  the  Synod  of  Geneva,  except  that  presby- 
teries, as  regards  the  General  Assembly,  are  not  under  the  juris- 
diction of  synods.  It  would,  therefore,  have  been  irrelevant  to 
say  so.  I  came  from  the  Presbytery  of  Geneva, — had  been 
preaching  the  winter  of  that  year  in  the  congregation  of  Junius, 
in  that  presbytery,  as  a  stated  supply — was  a  member  of  that  pres- 
bytery. The  churches  in  that  presbytery,  with  not  more  than  one 
exception,  were  governed  by  ruling  elders.  That  exception,  if 
any,  must  have  been  the  congregation  of  Middlesex. 

Interrogated  by  Mr.  Ingersoll. — With  regard  to  my  own  presby- 
tery, it  is  as  I  have  stated.  About  the  others  I  cannot  speak  abso- 
lutely. I  know  of  no  churches  that  are  strictly  Congregational;  I 
do  not  know  that  all  have  sessions.  If  there  be  any  churches  con- 
nected with  us  in  that  country,  within  the  bounds  of  the  synod  and 
beyond,  which  have  not  sessions,  they  have,  by  vote,  put  themselves 
under  the  care  of  some  presbytery.  I  believe  the  elders  in  all  those 
churches  are  for  life;  I  know  of  no  other  elders  than  those  chosen 
for  life.  I  do  not  know  that  all  those  churches  have  elders  chosen 
for  life.  I  know  of  none  which  have  committee-men.  I  presume 
there  are  some  churches  in  some  of  the  presbyteries  where  all  ques- 
tions are  submitted  to  the  male  members  of  the  church ;  I  have 
parol  evidence  that  there  are  such  in  that  region-  In  the  presby- 
tery to  which  I  belong,  all  have  sessions  except  one,  and  for  five  or 
six  years  past  my  attention  has  been  chiefly  confined  to  that  pres- 
bytery. Several  years  ago,  I  belonged  to  the  Presbytery  of  Buffalo; 
there  were  then  some  churches  connected  with  that  presbytery,  that 
had  not  appointed  ruling  elders.  I  am  unable  to  say  how  many- 
This  presbytery  now  belongs  to  the  Synod  of  Genessee.  They 
were  the  smaller  number,  and  smaller  churches,  I  should  say.  In 
the  new  churches  there  not  being  many  male  members;  hardly 
enough  for  the  formation  of  an  eldership;  in  some  instances  the 
appointment  of  elders  was  delaj^ed.  In  the  mean  time  such  a 
church  was  represented  in  the  presbytery.  I  have  no  knowledge 
of  subsequent  changes  in  the  Presbytery  of  Buffalo.  Frequently 
these  churches  afterwards  chose  ruling  elders.  I  now  reside  one  hun- 
dred miles  from  them,  and  therefore  do  not  know  much  about  them. 

Interrogated  by  Mr.  Ingersoll,  the  witness  said:  I  do  not  know 
[being  pointed  to  page  534  of  the  minutes  of  1837,  containing  the 
reports  of  the  Presbyteries  of  Onondaga  and  Cayuga]  whether  all 
these  churches  have  elders ;  I  know  of  none  which  have  not.  I  am  not 
so  extensively  acquainted  in  Onondaga  as  in  Cayuga.  lam  acquainted 
in  Auburn,  and  both  churches  there  have  ruling  elders.  I  am  unac- 
quainted of  my  own  personal  knowledge,  with  the  fact  how  many 
churches  there  are  in  the  Presbytery  of  Onondaga  which  have 
ruling  elders.  I  have  not  travelled  much  in  Onondaga.  The 
seventeen  counties  in  which  I  travelled,  as  agent  for  the  Home 


106 

Missionary  Society,  were  west  of  that  presbytery.  Some  of  the 
presbyteries  have  been  formed  since  that  time.  In  1816,  when  I 
settled  in  Buffalo,  Geneva  was  the  only  presbytery  in  those  seven- 
teen counties.  The  following  presbyteries  have  since  been  formed: 
out  of  Geneva,  in  1817,  were  formed  Ontario,  Niagara  and  Bath; 
and  in  1819,  the  Presbyteries  of  Rochester  and  Genessee  were 
formed,  all  by  the  Synod  of  Geneva.  At  a  later  period  the  Pres- 
bytery of  Tioga  was  created  by  the  same  synod.  Also  the  Pres- 
bytery of  Angelica,  by  the  same  synod.  In  1821,  the  Synod  of 
Genessee  was  formed  by  the  General  Assembly,  containing,  I  think, 
the  Presbyteries  of  Ontario,  Rochester,  Niagara  and  Genessee. 
Still  later  the  Presbytery  of  Niagara  was  divided  by  the  Synod  of 
Genessee ;  the  part  north  of  Tonnewanta  Creek  retained  the  name 
of  Niagara,  the  other  took  that  of  Buffalo.  The  Presbytery  of 
Chemung  was  subsequently  formed  by  the  Synod  of  Geneva.  I  do 
not  know  that  any  church  was  ever  represented  in  the  Presbytery 
of  Ontario  by  a  person  not  either  a  minister  or  a  ruling  elder.  I 
know  nothing  about  it.  I  know  persons,  who,  when  I  was  a  mem- 
ber of  the  Presbytery  of  Niagara,  fifteen  years  ago,  were  members 
of  that  presbytery,  from  churches  that  had  not  yet  organized  an 
eldership.  To  the  best  of  my  recollection,  there  were  but  a  small 
number  of  such  churches,  and  these  among  the  smaller  and  newer 
ones.  Each  church  belonging  to  a  presbytery  has  one  representa- 
tive. I  judge  there  were  churches  in  some  of  these  presbyteries, 
■which,  in  the  feature  of  not  having  elderships,  were  Congregational. 
There  is  one  church  which  has  the  reputation  of  belonging  to  Bath 
Presbytery,  which  has  no  ruling  elders — the  chnrr.h  of  Prattsburg. 
I  do  not  know  that  this  church  was  ever  represented  in  presbytery. 
I  do  not  know  of  any  such  in  the  Presbytery  of  Rochester.  I  am 
acquainted  with  all  the  principal  churches  in  Rochester,  but  not 
with  all.  To  the  best  of  my  knowledge,  those  churches  which 
have  not  yet  formed  elderships,  elect  one  from  the  male  members 
to  represent  them  in  presbytery.  I  have  never  been  present  at  any 
such  election. 

Interrogated  by  Mr.  HuhhelU  the  witness  said :  I  know  of  not  a 
single  church  formed  wholly  or  partly  on  the  accommodation  plan 
[that  is,  the  "Plan  of  Union,"]  being  partly  Presbyterian  and  partly 
Congregational.  There  are,  I  should  think,  between  thirty  and 
forty  churches  in  the  Presbytery  of  Buffalo.  At  the  time  I  was 
acquainted  with  it,  seventeen  or  eighteen  years  ago,  there  were 
some  churches  in  that  incipient  stage  which  I  have  described.  The 
common  language  in  presbytery  was,  "While  you  are  too  young 
to  form  elderships,  let  the  male  members  govern  the  church."  I 
cannot  say  that  all  the  churches,  which  were  thus  initiate,  fifteen 
years  ago,  have  now  become  consummate.  I  know  that  many  of 
them  have.  The  churches  of  Angelica,  I  have  always  understood, 
had  sessions;  I  know  of  none  in  that  presbytery  that  have  not.  I 
do  not  know,  however,  that  all  have.  1  do  not  know  that  all  in 
Genessee  have  ruling  elders;  but  I  know  none  that  have  not.  When 
I  belonged,  a  number  of  years  ago,  to  the  Presbytery  of  Niagara,  I 
had  reason  to  suppose  there  were  some  churches  that  had  not  ses- 
sions in  that  presbytery. 


107 

Re-examined  by  Mr.  Randall. — The  representation  from  the  Pres- 
bytery of  Watertown  which  were  referred  to  on  the  minutes  of  1837, 
p.  528,  is  always  according  to  the  number  of  ministers,  and  so  far 
as  I  know,  always  has  been.  It  is  so  in  all  presbyteries.  A  minis- 
ter without  charge,  as,  for  example,  the  president  of  a  college, 
always  counts  one  in  presbytery.  The  right  to  a  seat  commences 
with  his  ordination.  I  know  of  no  individual,  of  the  whole  number 
of  five  hundred  and  nine  ministers,  within  the  bounds  of  the  four 
excinded  synods,  who  is  not  a  regularly  ordained  Presbyterian 
clergyman.  All  were  such;  but  I  must  be  understood  as  meaning, 
that  we  received  clergymen  from  the  l^utch  Reformed  Church,  and 
from  the  Associations  of  New  England,  without  re-ordination ;  the 
terms  of  correspondence  did  not  require  that  they  should  be  re-or- 
dained. In  all  the  presbyteries  with  which  I  am  acquainted  there 
are  a  sufficient  number  of  Presbyterian  Churches  to  constitute  the 
presbyteries.  Striking  out  all  the  churches  about  whose  Presby- 
terianism  there  has  been  any  question,  there  would  have  remained 
a  sufficient  number  regularly  organized  to  send  commissioners  to 
the  General  Assembly  of  1837. 

Mr.  Randall  here  interrupted  the  witness,  to  give  in  evidence  the 
commissions  of  the  delegates  from  the  excinded  synods  to  the 
General  Assembly  of  1838. 

Mr.  Squier  in  continuation,  interrogated  by  Mr.  Randall. — I  was 
present  at  the  organization  of  the  Assembly  of  1838.  After  tendering 
the  commissions  to  the  clerks,  I  gave  them  for  keeping  to  Mr.  Nixon. 
I  introduced  him  to  Dr.  Mason,  and  then  went  into  the  house — found 
the  house  very  densely  occupied  at  the  south  end,  a  large  propor- 
tion of  the  gentlemen  in  that  part  of  it  being  of  the  Old  School 
party.  The  sermon  was  preached  as  usual,  and  at  its  close  the 
moderator,  Dr.  Elliott,  announced  that  after  the  usual  prayer  he 
would  proceed  to  constitute  the  Assembly.  This  prayer  being 
finished,  he  took  his  place  in  front  of  the  pulpit,  and  made  a  prayer, 
at  the  close  of  which  Dr.  Patton  rose  and  said,  that  he  held  in  his 
hand  certain  resolutions  which  he  wished  to  ofl^er.  Dr.  Elliott  said 
that  was  not  the  time  to  present  resolutions.  Dr.  Patton  said  that 
he  was  anxious  to  present  ihem  at  that  time.  Dr.  Elliott  stated  that 
they  could  not  be  received,  as  the  roll  was  the  next  thing  in  order; 
and  I  think,  stated  that  the  clerks  were  ready  to  make  their  report. 
Dr.  Patton  stated  that  he  had  the  floor  before  the  clerks,  and  that 
his  motion  related  to  the  roll.  The  moderator  told  him  he  was  out 
of  order.  Dr.  Patton  appealed  from  his  decision.  The  appeal  was 
seconded,  to  the  best  of  my  recollection.  The  moderator  refused 
to  put  the  appeal  to  the  house,  saying  to  Dr.  Patton  that  he  was  out 
of  order.  Dr.  Patton  then  took  his  seat,  and  the  clerks  made  their 
report.  Dr.  Erskine  Mason  then  rose,  and  addressed  the  mode- 
rator, saying  that  he  held  in  his  hand  the  commissions  of  certain 
commissioners  from  the  presbyteries  within  the  bounds  of  the 
Synods  of  Utica,  Geneva,  Genessee,  and  Western  Reserve,  which 
had  been  refused  by  the  clerks ;  that  he  now  tendered  them  (hold- 
ing them  up  to  view)  for  the  purpose  of  completing  the  roll.  The 
moderator  inquired  of  him  if  those  presbyteries  were  within  the 


108 

four  synods.  He  replied  they  were.  The  moderator  replied  that 
they  could  not  be  received,  or  in  words  to  that  effect.  Dr.  Mason 
then  appealed  from  the  decision  of  the  moderator  to  the  house, 
which  appeal  was  seconded.  The  moderator  refused  to  put  the 
appeal,  declaring  him  out  of  order.  I  then  rose,  and  mentioned  to 
the  moderator,  that  my  commission  had  been  tendered  to  the 
clerks,  and  had  been  refused;  and  I  now  demanded  my  seat,  and 
that  my  name  should  be  enrolled.  The  moderator  asked  what 
presbytery  I  represented.  I  replied  the  Presbytery  of  Geneva.  The 
moderator  asked  if  that  presbytery  belonged  to  the  Synod  of  Ge- 
neva. I  replied  that  it  was  within  the  bounds  of  the  Synod  of  Ge- 
neva. He  then  said,  "We  do  not  know  you."  Mr.  Cleaveland,  of 
Detroit,  then  rose,  and  said,  in  substance,  that  as  a  constitutional 
Assembly  must  be  organized  at  that  time  and  place,  by  the  admis- 
sion of  all  proper  members  to  their  seats,  and  as  it  was  evident  that 
this  could  not  be  done  under  these  officers,  or  as  it  was  impossible 
to  go  on  and  constitute  or  organize  the  Assembly  under  them,  he 
moved  that  Dr.  Beman  take  the  chair,  which  motion  was  seconded, 
and  was  put  by  Mr.  Cleaveland.  Dr.  Beman  rose  immediately 
after  the  question  had  been  put  and  carried,  by  what  I  should  think 
a  nearly  unanimous  vote.  He  was  sitting  near  the  front  of  the  slip. 
A  motion  was  then  made  and  seconded,  and  was  put  by  Dr.  Beman, 
that  Dr.  Mason  and  Mr.  Gilbert  be  appointed  clerks.  Dr.  Beman, 
the  acting  moderator,  then  called  for  nominations  for  the  regular 
moderator  of  the  Assembly,  when  Dr.  Fisher  was  nominated,  and 
the  nomination  being  seconded,  and  none  other  made,  the  question 
was  put  viva  voce.  Dr.  Beman  then  announced  to  Dr.  Fisher,  that 
he  was  elected  moderator  of  the  General  Assembly,  and  should 
govern  himself  by  the  rules  thereafter  to  be  read  to  him.  The  Rev. 
Dr.  Mason  was  then  nominated  as  stated  clerk,  and  Mr.  Gilbert  as 
permanent  clerk,  which  nominations  were  put  by  Dr.  Fisher,  and 
carried.  Some  paper  was  then  read,  or  referred  to,  the  purport  of 
which  I  did  not  then  understand.  On  the  back  of  this,  a  motion 
was  made  to  adjourn  to  the  First  Presbyterian  Church.  The  paper 
was  on  the  subject  of  the  occupancy  of  the  house,  and  signed  by  a 
Mr.  Schott.  I  cannot  state  by  whom  it  was  read,  but  to  the  best 
of  my  recollection,  it  was  by  Dr.  Beman.  The  body  then  retired 
to  the  session-room  of  the  First  Presbyterian  Church,  the  moderator 
announcing  that  if  there  were  any  other  commissions,  which  had 
not  yet  been  presented,  they  would  be  received  there.  After  get- 
tinof  to  the  lecture-room  of  the  First  Church,  the  business  went  on 
as  usual. 

I  think  the  motions  in  the  Seventh  Church  were  all  made  in  an 
audible  voice,  and  all  seconded;  and  the  question  on  each  put  by 
the  chair.  Opportunity  was  given  to  vote  in  the  negative.  So  far 
as  I  could  perceive,  the  business  had  the  attention  of  the  whole 
house.  The  house  was  very  still  when  I  was  on  the  floor.  There 
was  a  call  to  order,  of  Dr.  Patton,  by  the  moderator.  There  were, 
if  I  recollect,  some  cries  of  order  when  he  and  Dr.  Mason  were  on 
the  floor.  There  was  more  interruption  when  Mr.  Cleaveland  was 
on  the  floor,  from  Dr.  Elliott  and  those  in  his  part  of  the  house. 


109 

The  interruptions  proceeded  from  the  part  of  the  house  which  was 
filled  when  we  went  in,  by  those  who  acted  on  the  Old  School  side. 
I  cannot  say  that  they  were  all  Old  School  men,  but  many  I  knew 
to  be  so.  I  entered  the  house  near  eleven  o'clock,  before  ihe  com- 
mencement of  religious  services;  it  was  then  occupied  by  a  dense 
mass  of  men,  nearly  one-third  of  the  way  from  the  pulpit.  There  was 
a  universal  rumour,  that  a  meeting  for  consultation  had  been  held  in 
the  church  previously  to  this  time.  I  have  been  a  member  of  the 
General  Assembly  since  the  year  1817,  as  often  as  once  in  four  years. 
I  have  never  before  seen  such  a  collection  of  persons  at  that  hour. 
The  members  did  not  change  their  places  afterwards.  The  Assem- 
bly is  always  opened  with  a  sermon  by  the  old  moderator,  who 
presides  until  a  new  moderator  is  chosen.  The  practice,  to  the  best 
of  my  recollection,  formerly  was,  to  read  the  commissions  before 
all  the  members.  The  late  practice,  for  convenience,  has  been,  to 
commit  them  to  the  stated  and  permanent  clerks.  My  recollection 
is  not  distinct  as  to  the  subject  of  discussing  the  right  to  seats  be- 
fore, or  after  the  choice  of  a  moderator. 

The  plaintiffs  called  Rev.  Dr.  William  Hill,who  iestified :  I  belong  at 
present  to  the  Presbytery  of  the  District  of  Columbia,  although  my 
residence,  for  some  months  past,  has  been  at  Winchester,  Virginia. 
I  have  been  a  member  of  the  Presbyterian  Church  since  1787.     I 
have  been  repeatedly  a  commissioner  to  the  General  Assembly ; 
once  soon  after  the  Assembly  was  organized,  and  since,  how  often 
I  cannot  recollect,  but  I  believe  more  frequently  than  any  other 
member  from  Virginia.     I  have  filled  the  office  of  moderator.     It 
was  the  custom,  at  the  time  of  my  first  acquaintance  with  the 
Assembly,  for  the  commissions  to  be  brought  into  the  house,  and 
read  there.     The  constitution  says  merely  that  they  shall  be  read, 
but  as  to  the  points  where,  when,  and  before  whom,  this  shall  be 
done,  it  is  silent.     The  custom,  for  a  number  of  years,  was,  for 
commissioners,  as  soon  as  the  sermon  was  done,  to  present  them- 
selves at  the  clerks'  table,  and  their  commissions  were  read.     The 
doubtful  commissions  were  laid  aside,  to  be  acted  upon   by  the 
house.     Where  nothing  doubtful  appeared,  the   names  were  put 
upon   the  roll  immediately.     The  doubtful  commissions  were,  J 
think,  formerly  discussed  before  the  house;  but  this  was  found  too 
tedious,  and  a  Committee  of  Elections  or  Commissions  was  ap- 
pointed, to  examine  them  and  make  report  as  soon  as  possible. 
Sometimes  persons  appeared  without   their   commissions,   which 
perhaps  had  been  lost,  or  had  miscarried.     These  cases  were  re- 
ferred to  the  same  committee  to  be  reported  upon.     I  believe  the 
common  practice  was  to  defer  deciding  on  these  doubtful  commis- 
sions until  after  the  moderator  was  chosen.     Those  commissioners 
who  were  not  disputed  were  permitted  to   vote   for  moderator. 
When  the  Assembly,  in  process  of  time,  became  so  large  that  read- 
ing the  commissions,  in  extenso,  consumed  a  great  while,  this  was 
dispensed  with,  and  the  name  merely  of  each  commissioner,  and 
of  the  presbytery  from  which  he  came,  was  announced.      This 
continued  the  practice  until  thirteen  years  ago,  when  the  custom 
arose  of  referring  all  the  commissions  to  the  two  clerks,  in  order 

10 


110 

to  facilitate  business;  and  they  having  previously  examined  them, 
reported  the  roll  to  the  house.  The  constitution  says  nothing  on 
the  subject.  Business  progressed  in  this  way  comfortably  and  har- 
moniously, until  these  times  of  excitement  came,  when  the  custom 
was  considered  bad,  dissatisfaction  ensued,  and  a  desire  was  mani- 
fested to  revert  to  the  old  custom,  especially  when,  in  1837,  pledges 
were  exacted  from  the  clerks.  It  was  my  intention,  last  spring,  to 
move  the  Assembly  to  return  to  the  old  order,  as  less  objectionable, 
and  less  liable  to  abuse. 

I  was  a  member  of  the  Assembly  of  1835,  which  met  in  Pitts- 
burgh. It  was  a  pretty  tedious  process  of  organization  to  get  into 
our  gear  on  that  occasion,  and  I  believe  near  two  days  were  spent 
before  the  choice  of  a  moderator.  The  moderator  of  the  last  year 
was  not  present.  The  constitution  says  that  the  last  moderator 
present  shall  preside  until  a  new  one  shall  be  chosen.  The  mode- 
rator had  written  to  Dr.  Miller,  requesting  him  to  preach  the  ser- 
mon and  preside  in  his  place.  He  did  preach  ;  but  after  the  ser- 
mon, it  was  objected  to  that  he  should  act  as  moderator,  and  Dr. 
Beman  presided  a  considerable  time;  but  objection  being  made,  the 
office  devolved  on  Dr.  William  A.  M'Dowell,  I  believe  by  a  vote  of 
the  house.  Dr.  Beman  occupied  the  chair  a  considerable  time  be- 
fore his  right  was  called  in  question.  I  think  I  know  of  repeated 
instances,  in  which  disputed  commissions  were  decided  on  before 
the  organization  of  the  Assembly. 

Cross-examined. — Interrogated  by  Mr.  Huhbell. — The  ground 
on  which  Dr.  Beman's  right  was  disputed  was  that  he  was  not  the 
last  moderator  present.  Dr.  M'Dowell,  the  last  one  present,  was 
in  very  feeble  health,  and  it  was  to  accommodate  his  feelings  that 
another  person  was  put  in  the  chair. 

The  usage  is,  that  the  last  moderator  present  is  entitled  to  the 
chair. 

My  impression  is  that  Dr.  Beman  took  no  part  in  the  discussions 
of  the  house,  relating  to  his  removal ;  but  it  was  discussed  entirely 
by  the  members,  and  he  was  obedient  to  the  decision  as  soon  as  it 
was  made. 

Interrogated  by  Mr.  Randall,  the  witness  said :  I  think  the  objec- 
tion on  which  the  moot  point  arose  was,  that  Dr.  M'Dowell  was 
not  a  commissioner  to  that  Assembly. 

Cross-examined  by  Mr.  Ingersoll. — Witness  said  it  is  not  necessary 
to  be  a  commissioner  to  preach  the  sermon.  Dr.  Miller  preached 
it  on  this  occasion. 

The  plaintiffs  then  read  in  evidence,  extracts  from  the  minutes 
of  the  Assembly  of  many  years,  to  show  the  practice  of  the  As- 
sembly to  decide  on  disputed  commissions,  and  to  transact  other 
business  before  the  choice  of  a  moderator.  The  minutes  presented 
were  of  most  of  the  years  from  1823  to  1837,  inclusive. 

The  business  transacted  in  the  first  named  of  these  years  is  shown 
in  the  following  extract : 

Minutes  o/1823,  pp.  111—113. 
After  prayer  the  commissions  were  read,  and  it  appeared  that  the  following 


Ill 

ministers  and  elders  were  duly  appointed,  and  attended  as  commissioners  to  this 
Assembly,  viz. 

[The  roll  of  the  Assembly.] 

The  Rev.  Dr.  John  McFarland,  of  the  Presbytery  of  Ebenezer,  Dr.  Cyrus  Bald- 
win, ruling  elder  from  the  Presbytery  of  Onondaga  and  Mr.  Samuel  Blood,  ruling 
elder  from  the  Presbytery  of  Carlisle,  appeared  in  the  Assembly  without  commis- 
sions ;  but  sufficient  testimony  was  given  that  they  had  been  chosen  commissioners 
to  this  Assembly,  and  they  were  received  as  members  and  took  their  seats  ac- 
cordingly. 

The  Assembly  proceeded  to  elect  a  moderator  and  temporary  clerks,  &c. 

In  1831,  the  transactions  are  exhibited  as  follows: 
Minutes,  pp.  155 — 158. 

The  Standing  Committee  of  Commissions  reported  that  the  following  persons 
present  have  been  duly  appointed  Commissioners  to  this  General  Assembly,  viz. 

[Then  the  roll.] 

The  committee  further  reported  four  commissions  from  the  Presbytery  of  New 
Brunswick,  two  from  Watertown,  one  from  New  Castle,  and  one  from  Northum- 
berland, as  wanting  the  date  of  the  year  of  the  appointment :  Also  one  commis- 
sion from  New  Castle,  and  one  from  Eochester,  as  wanting  the  signatui'e  of  the 
Moderator ;  and  a  commission  from  Grand  River,  for  a  member  of  the  Standing 
Committee,  instead  of  a  Ruling  Elder.  The  conunittee  also  reported,  that  the 
Rev.  John  M'Crea,  of  the  Presbytery  of  Cleveland,  had  informed  them  that  he  had 
lost  his  commission. 

Mr.  Jacob  Green,  Mr.  Patton,  and  Mr.  A.  Piatt,  were  appointed  a  Committee 
of  Elections,  and  the  informal  commissions  were  referred  to  them. 

The  Assembly  had  a  recess  until  four  o'clock  this  afternoon. 

Thursday,  four  o'clock  P.  M.     After  recess  the  Assembly  met. 

The  Committee  of  Elections  reported  that  they  had  received  satisfactory  evi- 
dence of  the  regular  appointment,  as  commissioners,  of  the  persons  whose  com- 
missions had  been  referred  to  tjjjem.  With  respect  to  the  case  of  the  Standing 
Committee-man  from  Grand  River  Presbytery,  they  decline  expressing  any  opinion 
as  to  the  constitutional  question  of  the  right  of  such  to  a  seat  in  the  Assembly. 

The  Assembly  proceeded  to  consider  the  case  of  the  person  denominated  '  Stand- 
ing Committee'  in  the  commission  :  and  after  considerable  discussion,  it  was  re- 
solved that  the  member  be  received  and  enrolled. 

The  Assembly  proceeded  to  the  election  of  a  Moderator,  when  the  Rev.  Nathan 
S.  S.  Beman,  D.  D.  was  elected. 

After  the  reading  of  this  document  the  Court  adjourned. 

Saturday,  March  9tk. 
The  reading,  by  plaintiffs,  of  extracts  from  the  minutes  of  the 
Assembly,  to  show  the  practice  of  the  Assembly  to  decide  on  dis- 
puted commissions,  and  transact  other  business  previous  to  the 
election  of  moderator,  was  resumed. 

Minutes  of  1826,  page  6. 

Mr.  Josiah  Bissell,  from  the  Presbytery  of  Rochester,  appeared  in  the  Assembly, 
and  produced  a  commission  as  an  elder  from  that  Presbytery.  A  member  of  that 
Presbytery  informed  the  Assembly  that  Mr.  Bissel  had  not  been  set  apart  as  an 
elder ;  but  that  he  was  appointed,  as  was  supposed  by  the  Presbytery,  in  confor- 
mity with  the  conventional  agreement,  between  the  General  Assembly  and  the 
General  Association  of  Connecticut.  After  some  discussion,  the  Assembly  adjourn- 
ed till  9  o'clock  to-morrow  morning. 

May  19th, — The  Assembly  resumed  the  consideration  of  the  commission  of 
Mr.  Bissell,  and  after  considerable  discussion  it  was  resolved,  that  Mr.  Bissel  be  ad- 
mitted as  a  member  of  the  Assembly. 

The  Rev.  Thomas  M'Auley,  D.  D.  was  chosen  Moderator  :  and  the  Rev.  John 
Chester,  D.  D.,  and  the  Rev.  Samuel  T.  Mills,  were  chosen  temporary  clerks. 

Mr.  Randall  here  adverted  to  subsequent  pages  of  the  same  Mi- 
nutes, showing  a  protest  against  the  admission  of  Mr.  Bissell. 


112 

1.  Because  he  was  neither  an  ordained  minister,  nor  a  ruling  elder. 

2.  Because  lie  was  not  even  a  Committee-man,  on  which  ground  some  migbt 
have  been  disposed  to  advocate  his  admission. 

3.  Because  he  had  not,  either  from  the  constitution  or  from  the  Conventional 
Agreement,  the  shadow  of  a  claim  to  a  seat. 

Also  the  answer  of  the  Assembly  to  that  protest,  stating  that  Mr. 
Bisselj  was  received  because  he  brought  a  regular  commission  as  a 
ruling  elder. 

Plaintiffs  then  read  from  the  minutes  of  1835,  pp.  3,  6,  7. 

The  General  Assembly  of  the  Presbyterian  Church  met  in  the  First  Presby- 
terian church  in  this  city,  and  the  Rev.  Dr.  Lindsley,  the  moderator  of  the  last  As- 
sembly being-  absent,  was  opened  with  a  sermon  by  the  Rer.  Samuel  Miller,  D.  D,, 
at  the  request  of  the  Rev.  Dp.  William  A.  M'Dowell,  the  last  moderator  present. 
After  sermon,  the  stated  clerk  called  the  house  to  order,  and  informed  them,  that 
the  Rev.  Dr.  Lindsley,  the  moderator  of  the  last  Assembly  being  absent,  the  duties 
of  the  chair  devolved  upon  the  last  moderator,  who  is  present,  and  has  a  commis- 
sion to  sit  in  this  Assembly,  and  therefore  he  moved  that  the  Rev.  Nathan  S.  S.  Be- 
man,  D.  D.,  be  called  to  the  chair.  This  motion  prevailed,  and  Dr.  Beman  took  the 
chair,  and  constituted  the  Assembly  with  prayer. 

[Then  the  report  of  the  roll.] 

The  committee  further  reported,  that  the  commissions  from  the  Second  Pres- 
bytery of  New  York,  and  the  Presbytery  of  Genessee,  are  without  the  signatures 
of  the  moderator  ;  that  the  commissioners  from  the  Presbytery  of  Oswego  have  pre- 
.sented  an  attested  extract  from  the  minutes  to  prove  their  appointment ;  that  the 
Rev.  Elisha  Jenney  has  evidence  of  his  appointment,  but  lost  his  trunk  which  con- 
tained his  commission,  in  ascending  the  Ohio,  and  that  the  Rev.  Hugh  Wilson,  Mr. 
Wm.  H.  Pegram,  Mr.  Oren  Crittenden,  and  Mr.  Asa  S.  Allen,  have  evidence  of 
having  been  duly  appointed  to  attend  this  Assembly,  but  cannot  present  their  com- 
missions in  due  form. 

The  Assembly  had  a  recess  until  3  o'clock  this  afternoon. 

Thursday  afternoon,  3  o'clock.  The  Assembly  met.  A  motion  was  made  to 
reconsider  the  vote  by  which  Dr.  Beman  was  called  to  the  chair,  on  the  ground 
that  many  persons  voted  in  the  apprehension  that  Dr.  William  A.  M'Dowell,  the 
moderator  immediately  preceding  Dr.  Lindsley,  was  not  in  the  house  ;  and  that  many 
others  believed  the  rule  of  the  house  required  the  constituting  moderator  to  be  in, 
commission,  which  Dr.  M'Dowell  was  not.  This  motion,  after  considerable  dis- 
cussion, was  adopted  unanimously. 

After  some  further  remarks,  it  was  agreed  that  the  original  motion  of  the  stated 
clerk  should  be  again  submitted  to  the  house,  and  the  vote  be  taken  by  him. 
Whereupon  Dr.  Ely  put  the  question  ;  (Minutes  of  1836,  pages  235,  238,  and  239,) 
'  all  who  are  in  favour  of  sustaining  the  resolution  passed  in  the  morning,  by  which 
Dr.  Beman  was  called  to  the  chair,  will  signify  it  by  saying  aye.'  This  motion  was 
lost.  It  was  then  moved  that  the  Rev.  William  A.  M'Dowell,  D.  D.,  being  the  last 
moderator  present,  be  requested  to  take  the  chair.  This  motion  prevailed,  and 
Dr.  M'Dowell  took  the  chair  accordingly. 

The  Rev.  Eliakim  Phelps,  J.  M.  Krebs,  and  Mr.  Charles  Starr,  were  appointed 
a  Committee  of  Elections,  and  the  cases  of  the  commissioners  above  reported,  were 
referred  to  them. 

The  Committee  of  Elections  reported,  that  they  had  examined  the  cases  of 
the  commissioners  referred  to  them,  and  finding  ample  evidence  that  they  had  all 
been  duly  appointed  commissioners  to  this  Assembly,  recommended  that  their  names 
be  enrolled  as  members.     The  report  was  adopted. 

The  right  of  two  persons  to  a  seat  in  the  Assembly  from  the  Presbytery  of  Port- 
age, was  questioned,  whereupon  their  case  was  referred  to  the  Committee  of  Elec- 
tions. After  considering  the  subject,  the  committee  reported  that  the  names  of 
the  minister  and  elder  last  appointed,  should  be  erased,  because  the  presbytery  is 
entitled  to  no  more  than  two  commissioners.     The  report  was  adopted. 

A  letter  was  received  and  read  from  John  M'Dowell,  D.  D.,  informing  the  As- 
sembly, that  in  consequence  of  ill  health,  he  was  not  able  to  attend  their  present 
session.  Whereupon  the  Rev.  Jacob  Green  was  appointed  to  act  as  permanent 
clerk,  during  the  sessions  of  the  present  Assembly. 

The  Assembly  proceeded  to  the  choice  of  a  moderator  and  temporally  clerk. 


113 

Rev.  Dr.  Robert  Cathcart,  called  to  establish  the  same  practice 
in  the  Assembly,  previous  to  the  time  when  the  full  minutes  of  the 
Assembly  were   published,  interrogated  by  Mr.  Randall,  said  : — I 
have  been  a  minister  of  the  Presbyterian  church  in  the  United 
Stales,  upwards  of  forty-six  years, — have  been  present  in  forty  or 
more  General  Assemblies, — have  been  a  commissioner  from  thirty 
to  thirty-five  times.     From  fifteen  to  twenty  years  I  was  clerk  of 
the  Assembly.     Formerly  there  was  no  division  of  the  duties  of 
the  clerk's  office.     Our  constitution  knows  nothing  of  a  stated  and 
permanent  clerk.     It  recognizes  only  a  clerk  of  the  Assembly,  and 
the  duties  which  it  prescribes  for  him  are  very  simple.     In  the 
early  period  of  the  Assembly  either  the  previous  clerk,  or  some 
one  nominated  on  the  occasion,  officiated  till  the  Assembly  was 
constituted.     The  commissions  were  brought  and  put  upon  the 
table,  and  the  clerk  read  them.     After  some  years,  when  the  num- 
ber had  increased,  this  method  was  found  inconvenient,  and  it  be- 
came customary  to  read  only  the  most  essential  parts  of  each 
commission,  the  name  of  the  commissioner,  and  of  the  presbytery, 
and  the  signature  of  the  moderator.     At  this  time  there  was  so 
few  disputed  or  defective  commissions,  that  they  were  usually  set- 
tled at  the  clerk's  table.     Afterwards,  when  the  number  had  in- 
creased, another  plan  was  adopted.     Such  commissions  were  laid 
aside,  till  those  about  which  there  was  no  difficulty  had  been  read. 
A  committee  on  commissions  was  then  appointed,  and  into  their 
hands  went  all  the  doubtful  cases.     Then  a  recess  was  usually  al- 
lowed for  dinner,  and  after  the  interval,  the  committee  reported 
the  names  of  those  whom  they  thought  duly  elected.     These  were 
usually  received  from  the  report  of  the  committee,  and  no  vote 
passed   upon  them  by  the  Assembly.      Then  the  moderator  an- 
nounced that,  if  any  commissioners  had  entered  the  house  in  the 
interim,  they  should  come  forward  and  present  their  commissions. 
After  this  they  chose  a  moderator  and  clerks.     Since  the  year 
1802,  the  permanent  clerk  has  continued  in  office,  until  a  new  one 
was  appointed.     The  report  of  the  committee  was  received  ex 
officio,  without  any  vote.     They  settled  who  were  members,  and 
those  thus  reported  were  put  on  the  roll.     It  was  never  supposed 
that  the  clerks  had  a  right  to  reject  any  commissions.     The  As- 
sembly is  entirely  independent  of  any  officers;  if  the  moderator 
and  clerks  should  all  die,  the  body  would  still  exist. 

Cross-examined. — Interrogated  by  Mr.  Hubbell.  Of  late,  since 
it  has  been  found  that  so  much  time  was  consumed  in  reading  the 
commissions  at  the  table,  it  has  been  the  practice  for  the  clerks  to 
attend  in  the  morning,  before  eleven  o'clock,  to  receive  commis- 
sions. They  are  called  a  Committee  of  Commissions.  It  is  their 
business  to  examine  the  commissions,  and  see  whether  they  are 
regular.  Sometimes  they  find  defects,  as  the  want  of  a  signature. 
Sometimes  commissions  have  been  lost,  or  forgotten.  They  have 
always  reported  according  to  circumstances.  The  irregular,  or 
doubtful  cases  then  go  into  the  hands  of  a  committee  of  elections. 
Rev.  Eliphalet  Gilbert,  called  by  the  relators. — Interrogated  by 
Mr.  Randall.     I  belong  to  the  Presbytery  of  Wilmington,  Delaware. 

10* 


114 

I  was  a  member  of  the  General  Assembly  of  1837,  and  also  of  that 
of  1838.  On  the  morning  of  the  3d  Thursday  of  May,  1838,  I 
went  to  the  church  in  Ranstead  court,  about  half  past  ten  o'clock. 
1  found  the  seats  near  the  pulpit  nearly  filled  by  the  brethren  of  the 
Old  School  party,  as  they  are  usually  called.  I  then  stepped  round 
into  the  lobby,  and  handed  my  commission  to  the  Committee  of 
Commissions.  1  was  surprised  to  hear  Dr.  M'Dowell  say  to  Mr. 
Krebs,  "  These  doors  ought  to  be  locked."  As  I  had  been  present 
at  many  Assemblies,  and  had  never  known  them  locked,  I  was 
surprised  at  this.  Soon  after,  the  doors  were  locked.  I  then  took 
my  seat  in  the  house  on  the  east  aisle,  as  near  to  the  front  as  pos- 
sible. After  sermon  and  prayer.  Dr.  Patton  rose,  and  said  :  "  Mr. 
Moderator,  I  hold  in  my  hand,  certain  resolutions,  which  I  wish 
to  present  to  the  house."  The  moderator  told  him  he  was  out  of 
order,  saying  that  the  first  business  was  the  report  on  the  roll 
Dr.  Patton  replied,  that  his  resolutions  bore  upon  the  roll,  and  that 
he  desired  they  might  be  presented,  and  acted  upon  without  de- 
bate. The  moderator  replied  again,  that  he  was  out  of  order  ; 
that  the  clerk  had  the  floor.  Dr.  Patton  said,  he  had  the  floor  be- 
fore the  clerk.  Again  the  moderator  said  he  was  out  of  order. 
Dr.  Patton  appealed  from  his  decision  to  the  house,  and  his  appeal 
was  seconded  by  a  number,  at  least  a  dozen  voices.  I  seconded  it, 
and  so  did  others  sitting  around  me.  The  moderator  declared  the 
appeal  out  of  order,  refused  to  put  it  to  the  house,  and  ordered  the 
clerks  to  proceed  with  the  roll.  Dr.  Patton  then  sat  down.  Mr,. 
Krebs  then  read  the  roll,  omitting  the  names  of  all  the  commis- 
sioners from  twenty-nine  presbyteries,  viz.  the  twenty-eight  be- 
longing to  the  four  excinded  synods,  and  the  Third  Presbytery  of 
Philadelphia.  The  moderator,  after  the  roll  was  concluded,  said: 
according  to  the  usual  form,  that  if  there  were  any  other  commis- 
sions, from  any  part  of  the  Presbyterian  church,  now  was  the 
time  to  present  them.  Dr.  Mason,  of  New  York,  then  rose,  hold- 
ing a  bundle  of  papers  in  his  hand,  and  said,  "  Mr.  Moderator,  I 
hold  in  my  hand  a  number  of  commissions,  which  have  been  re- 
jected by  the  clerks :  1  now  tender  them  to  the  house,  and  move 
that  the  names  be  added  to  the  roll."  This  motion  was  seconded. 
The  moderator  asked  whether  they  were  from  presbyteries  in  the 
Presbyterian  church,  at  the  close  of  the  General  Assembly  of  1837. 
Dr.  Mason  answered,  that  they  were  from  presbyteries  belonging 
to  the  synods  of  Utica,  Geneva,  Genessee,  and  the  Western  Re- 
serve. The  moderator  replied,  "  We  cannot  receive  them."  Dr. 
Mason  said,  "I  do  most  respectfully  appeal  from  your  decision  to 
the  house."  I  should  have  said,  that  he  had  already  been  declared 
out  of  order.  This  appeal  was  seconded  by  many  voices,  and  the 
moderator  declared  it  out  of  order,  and  refused  to  put  it.  The 
Rev.  Miles  P.  Squier  then  rose  in  his  place,  and  said,  that  he  had 
been  regularly  commissioned  from  the  Presbytery  of  Geneva,  had 
handed  his  commission  to  the  clerks,  and  they  refused  to  receive 
it;  that  he  now  tendered  it  to  the  Assembly,  and  demanded  his 
seat  upon  that  floor.  The  moderator  asked  whether  the  Presbytery 
of  Geneva  belonged  to  the  Synod  of  Geneva.     Mr.  Squier  replied. 


115 

that  it  was  within  the  bounds  of  the  Synod  of  Geneva.     The  mo- 
derator said,  "  We  do  not  know  you,"  and  Mr.  Squier  sat  down. 
Here   the  Rev.  John  P.  Cleaveland  rose,  and  after  a  few  remarks, 
moved  a  change  of  officers.     He  said,  it  was  evident,  from   the 
refusal  of  the  moderator  and  clerks  to  do  their  duty,  that  a  consti- 
tutional  organization  of  the  Assembly  could  not,  under  those  cir- 
cumstances, be  efiectcd  ;  that  we  had  been  advised  b^^  men  learned 
in  ihe  law,  that  the  organization  must  take  place  at  that  time,  and 
in  that  house;  and   he   moved  a  change  of  moderator,  and   nomi- 
nated Dr.  N.  S.  S.  Beman  to  preside   until  a  new  one  should  be 
chosen.     This  was  seconded,  and  Mr.  Cleaveland  put  it,  saying, 
"  All  those  who  are  in  favour  of  the  motion,  will  please  to   say, 
aye."     There  was  a  loud  and  general  "Aye."      Then   he  said, 
"  All  who  are  against  it  will  say,  No,"  and  I  heard  some  murmur- 
ing, but  no  loud  distinct  "  No."     I  understood  the  object  of  the 
motion  to  be  to  remove  Dr.  Elliott,  and  substitute  Dr.  Beman  in 
his  place.     Mr.  Cleaveland  declared  that  the  motion  was  carried, 
and  asked   Dr.  Beman  to  take  the  chair.     Dr.  Mason  and  myself 
were  nominated  clerks,  pro  tern.,  and  the  motion  was  put  and  car- 
ried.    After  my  own  election,  I  left  my  previous  seat,  and  passed 
round  near  where  Mr.  Krebs,  and  Dr.  M'Dowell  sat,  and  walked 
down  the  broad  aisle,  near  where  Dr.  Beman  stood,  that  I  might  be 
ready  to  call   the  roll,  which  I   held  in  my  hand,  if  necessary. 
While  I  was  thus  passing  down   the  aisle,  Dr.  Beman  called  for 
nominations  for  moderator  of  the  Assembly  of  1838.     Professor 
Dickinson  of  Cincinnati,   nominated  Dr.  Fisher,  and  the   nomi- 
nation was  seconded.     Dr.  Beman  asked,  if  there  were  any  other 
nominations.    None  were  made  :  the  roll,  therefore,  was  not  called, 
but  the  question   was  decided  viva  voce.     Dr.  Beman   said,  "  All 
who  are  in  favour  of  Dr.  Fisher's  being  the   moderator  will  say 
aye,  and   there   was   a   general   "  Aye."      Then,    "  All  who  are 
against  it  will  please  to  say,  no,"  and  I  heard  several  loud  "Noes." 
The  usage  of  the  Assembly  is,  when  only  one  person  is  nominated, 
to  vote  viva  voce,  and  when  there  are  two  nominations  to  call  the 
roll.     I  have  known  such  a  question  to  be  determined  viva  voce,  in 
a  number  of  instances.     Dr.  Beman  declared  the  motion  to  be  car- 
ried, and  introduced  Dr.  Fisher  to  his  place :  he  had  no  chair,  but 
merely  stepped  aside.     He  reminded  Dr.  Fisher,  that  he  was  to  be 
governed   by  the  rules   thereafter  to  be  adopted  by  the  Assembly. 
It  is  usual  for  each  Assembly  to  adopt  rules  for  itself     Those  are 
commonly  adopted  which  are  in  the  appendix  to  the  Constitution 
of  the  Church.     Dr.  Fisher  then  called  for  nominations  for  stated 
and  permanent  clerks,  and  Dr.  Mason  and  myself  were  nominated. 
Dr.  Fisher  asked  if  there  were  any  further  nominations,  but  none 
were  made,  and  he  put  the  motion,  and  it  was  carried  almost  una- 
nimously.    I  think  there  were  some  nays,  but  if  so,  they  were  not 
so  distinct  as  before.  The  negatives  came  generally  from  the  south- 
western part  of  the  house,  or  from  towards   the  w'est  door — that 
part  of  the  house  occupied  by  the  Old  School  party — by  Mr.  Breck- 
inridge, Mr.  Plumer,  and  their  friends.     I  am  positive  they  came 
from  that  side.     There  were  negatives  on  both  questions,  I  believe, 


116 

though  I  am  not  so  positive  of  this,  in  regard  to  the  last,  as  in  re- 
gard to  the  motion  for  Dr.  Fisher.  I  cannot  say  certainly,  because 
there  was  considerable  confusion  in  the  house.  There  was  but  one 
nomination  for  each  officer.  The  question  upon  the  first  motion, 
that  of  Mr.  (^leaveland,  I  know  was  reversed ;  and  I  believe  it 
was  on  all  the  subsequent  motions.  I  know  it  was  on  two  or  three. 
A  motion  was  made,  that  the  Assembly  should  adjourn  to  meet 
forthwith  in  the  lecture-room  of  the  First  Presbyterian  Church. 
This  motion  was  put  and  carried.  After  this,  there  was  considera- 
ble confusion  in  the  house.  The  question  was  reversed,  but  I  think 
there  was  none  against  it.  Dr.  Fisher  declared  that  the  Assembly 
had  adjourned  to  meet  forthwith  in  the  lecture-room  of  the  First 
Presbyterian  Church,  and  that,  if  any  commissioner  present  had 
not  yet  handed  in  his  commission,  he  could  present  it  at  that  place. 
I  do  not  remember  the  reading  of  any  papei\  Some  reason  was 
assigned  for  adjourning,  as  the  confusion,  or  the  difficulty  of  occu- 
pying that  house.  We  left  the  church  on  Ranstead  court,  and  re- 
moved to  the  lecture-room  of  the  church  on  Washington  Square. 
A  few  minutes  after,  or  as  soon  as  we  were  convened  there,  the 
roll  was  called,  and  we  proceeded  to  business.  Dr.  Patton  then 
presented  the  resolutions  which  he  had  offered  in  the  church  in 
Ranstead  court — the  same  as  those  contained  in  the  paper  read 
here.  These  were  put  and  carried.  The  General  Assembly,  of 
which  I  was  clerk,  continued  in  session  about  eleven  or  twelve 
days,  in  the  church  on  Washington  Square.  The  different  motions, 
made  in  the  church  in  Ranstead  court,  were  all  made  by  persons 
having  an  undisputed  right  to  seats,  having  been  reported  as  mem- 
bers, by  the  committee  of  commissions,  excepting  Mr.  Squier. 
They  all  made  their  motions  in  a  loud  voice — louder  than  usual — 
so  that  they  could  be  heard  over  the  whole  house.  They  were  ad- 
dressed to  the  whole  house.  I  should  think  there  was  an  opportu- 
nity for  every  member  present  to  vote.  The  only  thing  that  made 
it  difficult  to  hear,  was  the  noise  at  times  made  in  the  house.  This 
did  not  commence  until  after  Dr.  Patton  rose.  The  moderator 
called  to  order,  and  others  around  the  moderator,  cried  "  Order  ! 
Order !"  a  few  times.  The  greatest  confusion  was  when  Mr. 
Cleaveland  rose.  There  were  a  great  many  cries  of  "  Order !" 
from  those  around  the  moderator,  and  from  that  part  of  the  house, 
together  with  coughing,  scraping,  hissing,  and  hushing,  yet  not  so 
loud  but  that  Mr.  Cleaveland  could  be  heard  throughout.  Some 
efforts  were  made  to  keep  down  the  noise.  Some  persons  rose  to 
their  feet,  and  there  was  considerable  confusion  in  the  gallery. 
The  noise  commenced  in  the  southern,  and  south-western  portions 
of  the  house.  The  Old  School  occupied  the  seats  in  front,  but  they 
were  most  compact  in  the  south-western  corner.  The  lobby  is 
under  the  pulpit,  at  the  south  end  of  the  church,  and  from  it 
there  are  two  doors,  one  on  each  side  of  the  pulpit,  into  the 
church.  The  clerks  sit  in  that  lobby,  or  vestry.  Formerly  these 
doors  had  always  been  left  open ;  and  persons  who  wished  to 
get  places  near  the  moderator's  chair,  entered  by  them.  I  had 
never  before  known  them  to  be  locked.  The  door  on  each 
side  of  the  moderator's  chair  was  locked.    The  seats  around  the 


I 


117 

moderator's  chair,  were  all  occupied  by  half  past  ten  o'clock,  but 
some  persons  could  have  stood  in  the  vacant  places.  The  locking 
of  the  doors  compelled  all  who  came  afterwards  to  fake  seats  fur- 
ther north.  I  have  never  before  seen  the  members  thus  seated  at 
that  hour.  The  whole  roll,  embracing  all  the  commissioners  from 
one  hundred  and  thirty-five  presbyteries,  was  called,  in  the  Assem- 
bly that  met  in  the  church  on  Washington  Square,  once  a-day. 
I  cannot  state  how  many  answered  to  their  names  the  first  day, 
but  I  think  from  one  hundred  and  seventeen  to  a  hundred  and 
twenty.  There  were  some  upon  the  roll  who  did  not  answer. 
Afterwards  the  number  of  those  that  answered,  was  about  a  hun- 
dred and  thirty,  some  ten  or  twelve  having  been  subsequently  re- 
ceived. I  think  altogether  there  were  between  a  hundred  and 
twenty-seven,  and  a  hundred  and  thirty. 

The  plaintiffs'  counsel  inquiring  of  Mr.  Gilbert  respecting  the 
election  of  the  relators  as  trustees  of  the  Assembly,  and  the  respon- 
dents' counsel  objecting  to  his  being  examined  on  that  subject^ 
plaintiffs  read  in  evidence  the  following  extracts  from  the  minutes 
of  1838,  pages  650  and  654. 

Overture  No.  4,  was  reported  by  the  committee  of  bills  and  overtures  taken  up 
and  adopted;  viz.,  Resolved,  That  for  the  current  year  the  Assembly  will  elect 
six  trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America. 

Resolved,  That  the  election  of  said  trustees  be  made  the  order  of  the  day  for 
Thursday  forenoon  at  10  o'clock,  in  the  manner  prescribed  and  adopted  by  the 
Assembly  in  1801,  p.  198-9  of  the  Digest. 

Tkursday,  May  24th,  9  o'clock.  At  10  o'clock  the  Assembly  proceeded  to 
the  order  of  the  day,  viz.,  the  election  of  six  trustees  of  the  General  Assembly. 
Messrs.  Bogue,  Brown,  and  Chapin  were  appointed  to  receive  the  ballots  and  report 
the  result.  The  Assembly  ascertained  that  no  vacancies  in  the  board  of  trustees 
have  occurred  by  death  or  otherwise.  They  then  proceeded  to  try  whether  they 
could  elect  any  of  that  third  of  the  number  of  trustees  which  they  are  permitted  by 
law  to  change,  by  voting  for  a  person  to  fill  the  place  of  the  Rev.  Ashbel  Green, 
D.  D.,  the  first  on  the  list.  On  counting  the  votes  it  was  ascertained  that  all  the 
votes  were  given  for  James  Todd,  who  was  accordingly  declared  by  the  moderator 
to  be  a  trustee  duly  chosen  in  the  place  of  Ashbel  Green.  In  the  same  manner 
the  Assembly  proceeded  to  vote,  and  unanimously  elected  John  R.  NefF  in  the 
place  of  George  C.  Potts ;  Frederick  A.  Raybold  in  the  place  of  William  Latta ; 
George  W.  M'Clelland  in  the  place  of  Thomas  Bradford ;  William  Darling  in  the 
place  of  Solomon  Allen  ;  and  Thomas  Fleming  in  the  place  of  Cornelius  C.  Cuyler; 
thus  changing  as  many  of  the  trustees  as  they  are  permitted  by  law  to  change. 
Whereupon  James  Todd,  John  R.  NefF,  Frederick  A.  Raybold,  George  W.  M'Clel- 
land, William  Darling,  and  Thomas  Fleming,  were  declared  to  be  duly  elected 
trustees  of  the  General  Assembly  of  the  Presbyterian  Church  in  the  United  States 
of  America. 

Mr.  Gilbert  cross-examined. — Interrogated  by  Mr.  Huhhell,  wit- 
ness said :  the  vacant  space  in  front  of  the  pulpit,  might  be  approach- 
ed from  the  other  doors.  I  passed  through  that  space  when  I  went 
round  to  act  as  clerk.  I  could  get  to  any  part  of  the  house,  after 
the  doors  by  the  sides  of  the  pulpit  were  locked ;  but,  as  the  aisles 
were  crowded,  it  was  not  as  convenient  for  a  modest  man  to  do  so, 
as  if  they  had  not  been  locked.  All  others  than  modest  men  could 
get  seats  as  well  as  if  the  doors  had  not  been  locked,  but  the  nearest 
way  to  the  front  seats  was  through  the  lobby  doors.  There  are 
four  other  doors  to  the  church  besides  the  ones  that  were  closed. 
I  believe,  that  when  I  arrived,  all  the  doors  by  which  the  congre- 


118 

gation  usually  pass  into  the  church  were  open..  It  is  not  customary, 
I  believe,  for  them  to  pass  through  the  lobby.  The  Assembly  has 
met  in  that  church,  I  think,  seven  or  eight  times.  A  mixed  con- 
gregation of  males  and  females,  such  as  is  usually  found  in  a  church, 
were  seated  in  the  galleries  and  in  the  back  pews,  on  the  floor  of  the 
house.  There  were  clamorous  expressions  of  applause  from  the 
galleries,  and,  perhaps,  some  from  the  floor  of  the  house,  after  the 
motion  for  adjournment  to  the  First  Church.  I  did  not  see  around 
where  I  stood,  any  who  were  not  members  of  the  Assembly.  The 
brethren  of  the  New  School  occupied  such  seats  as  they  could  get, 
and,  very  probably,  there  may  have  been  some  who  were  not  mem- 
bers in  the  same  seats.  I  do  not  recollect  whether  the  clerks — 
Mr.  Krebs  and  Dr.  M'Dowell,  came  into  the  house  after  me  or  not. 
I  left  them  in  the  committee  room. 

Interrogated  by  Mr.  Preston, — I  am  not  positive  whether  the  mo- 
derator was  seated,  when  Dr.  Patton  made  his  motion.  The  clerks 
were  in  advance  of  Dr.  Elliott,  and  both  he  and  they  continued  to 
occupy  the  same  places,  as  long  as  I  saw  them.  Those  who  were 
seated  near  the  pulpit,  to  the  best  of  my  recollection,  also  remained 
there  as  long  as  I  saw  them.  I  do  not  know  that  our  proceedings 
were  entirely  outside  of  the  Old  School.  The  greater  portion  of 
the  Old  School,  intervened,  in  a  compact  mass,  between  us  and  Dr. 
Elliott.  Dr.  Beman  was  not  conducted  to  the  chair,  but  stood  in 
the  aisle,  in  the  rear  of  the  body  of  the  Old  School  party.  The  seats 
of  the  moderator  and  clerks  are  generally  in  front  of  the  members, 
but  I  have  heard  of  an  Assembly's  having  held  its  session  in  the 
street,  without  any  clerks  at  all.  The  Assembly  of  1837  met  on  the 
pavement  at  the  gate  of  a  church  in  this  city.  It  is  not  usual 
to  have  two  moderators  of  the  Assembly  at  the  same  time.  I 
have  known,  however,  two  sitting  at  the  same  time,  both  called  mo- 
derators. In  the  year  1837,  there  was  one  in  the  street  in  front  of 
the  church  in  Spruce  street,  and  another  in  the  Central  church ; 
they  were  not  in  the  same  house.  I  have  never  known  two  persons 
to  sit  in  the  same  house,  both  claiming  to  be  moderators.  I  am 
sure  that  some  of  the  Old  School  participated  in  our  proceedings 
at  the  church  in  Ranstead  Court.  The  mass  of  them  did  not  go 
with  us,  but  remained  behind.  The  Old  School,  I  believe,  had  a  ma- 
jority of  members  present  on  that  occasion. 

The  meeting,  at  which  the  New  School  concerted  their  plan  of 
proceeding,  was  not  composed  exclusively  of  New  School  men. 
No  one  was  excluded.  I  saw  there  some  who  acted  with  the 
Old  School  afterwards. 

\_Mr.  Randall  objected  to  the  witness's  giving  evidence  in  regard 
to  the  consultation  meeting,  as  the  relators  had  not  been  allowed  to 
investigate  the  acts  of  individual  members  of  the  Old  School  party, 
but  had  been  confined  to  the  pubhc  acts  of  the  Assembly  of  1837. 
The  subject  was  waved.] 

I  regarded  all  the  members  present  in  the  Seventh  Presbyterian 
church,  as  participating  in  our  proceedings.  I  had  supposed  that 
we  should  have  a  strong  vote  against  us,  and  was  agreeably  sur- 
prised to  hear  so  few  noes.     The  Old  School  men  did  not  go  with 


i 


119 

us  on  our  adjournment  to  the  First  Presbyterian  church.  We  did 
not  regard  them  as  having  any  moderator  or  clerks. 

Taking  all  the  commissioners  to  the  Assembly  of  1838,  I  think 
there  was  a  small  majority  of  Old  School  men  present.  The  pro- 
ceedings of  the  consultation  meeting  were  not  exclusive  of  the  Old 
School  party;  all  were  invited  to  attend. 

[A  colloquy  of  some  length  here  ensued  between  the  counsel  and 
the  court,  and  the  witness  then  proceeded.] 

I  use  the  word  unanimous  according  to  the  language  of  our  judi- 
catories. With  us,  when  several  are  in  favour  of  a  motion,  and, 
the  question  being  reversed,  there  are  none  opposed,  it  is  said  to  be 
carried,  unanimously.  No  reference  is  had  to  the  intentions  of 
members.  I  used  it  according  to  legal  intendment,  and  according 
to  our  constitution.  It  is  impossible  for  any  one  to  say  whether  a 
majority  voted.  The  vote  was  very  loud — louder  than  usual,  and 
the  voices  numerous.  I  will  not  venture  to  say  that  a  majority  did 
vote.  I  do  not  know  but  that  a  minority  voted.  I  am  now  speak- 
ing of  actual  voting. 

[Mr.  Preston.  If  a  majority  had  voted  against  you,  what  would 
you  have  done  then? 

This  question  was  objected  to. 

Judge  Rogers.    I  do  not  think  this  a  proper  question.] 

Direct  examination  resumed.  The  seats  where  members  usually 
sit  were  entirely  occupied,  when  I  entered  the  house,  so  that  mem- 
bers could  have  no  place  near  the  pulpit,  unless  they  should  stand 
in  the  aisles.  There  was  no  vacant  pew,  though  perhaps  a  few 
individual  seats  here  and  there. 

[Mr.  Preston.  A  word  of  explanation,  if  you  please.  I  under- 
stood you  to  say,  that  some  of  the  Old  School  voted  in  the  negative. 

Mr.  Gilbert.  I  did  not  say  that  some  of  the  Old  School  voted ; 
but  that  the  voices  came  from  the  part  of  the  house  where  they  sat.] 

I  never  before  knew  a  moderator  refuse  to  put  an  appeal  from 
his  decision.  Our  rules  are  express  on  this  subject.  Formerly 
the  old  rules  of  the  Assembly  were  considered  to  be  in  force  with- 
out being  re-adopted.  This  was  so  until  Mr.  Breckinridge  came 
into  the  Assembly,  about  five  years  ago.  Mr.  Breckinridge  was  the 
author  of  the  regulation  to  re-adopt  the  rules  at  every  session. 
I  understand  the  old  rules  are  in  operation  till  new  ones  are  adopted. 

Rev.  Dr.  Erskine  Mason  called.  Interrogated  by  Mr.  Randall — I 
was  a  commissioner  to  the  General  Assembly  of  1838,  from  the  Third 
Presbytery  of  New  York,  not  within  the  bounds  of  the  excinded. 
About  half  past  ten  o'clock  on  the  third  Thursday  of  May,  I  went 
to  the  church  up  Ranstead  Court.  As  I  was  going  up  the  court  I 
met  several  individuals,  by  whom  something  was  said  in  regard  to 
seats  inside.  I  went  to  the  door  facing  the  court,  and  looking  in, 
saw  persons  thickly  collected  in  the  small  aisle,  I  then  went  round 
to  the  door  at  the  other  end  of  the  building,  and  walking  down  the 
middle  aisle  got  as  near  the  pulpit  as  I  could;  I  don't  recollect  how 
many  pews  there  were  between  me  and  the  pulpit.  I  found  the 
seats  in  front  of  the  pulpit  filled,  and  could  not  get  nearer  than  the 
eighth  or  ninth  pew.     At  the  conclusion  of  the  exercises,  Dr.  Elliott, 


120 

the  Moderator  of  the  Assembly  of  1837,  gave  notice,  that  after  the 
benediction  he  would  conne  down  and  constitute  the  Assembly.     He 
came  down  and  took  a  seat  in  front  of,  and  below  the  pulpit.     He 
offered  an  introductory  prayer,  at  the  close  of  which  Dr.  Patton 
rose  and  addressed  the  moderator.     He  said  that  he   held  in  his 
hand  certain  resolutions  and  a  preamble  which  he  desired  to  offer. 
The  moderator  declared  him  out  of  order,  and  that  the  next  busi- 
ness was  the  report  of  the  clerks.     Dr.  Patton  replied  that  his  reso- 
lutions would  consume  little  time,  and  he  would  not  debate  them. 
The  moderator  said  he  was  out  of  order.     Dr.  Patton  said  that  the 
resolutions  he  wished  to  offer  had  reference  to  the  formation  of  the 
roll.     The  moderator  again  declared  him  out  of  order.     Dr.  Patton 
appealed  to  the  house,  and  his  appeal  was  seconded.     The  mode- 
rator declared  his  appeal  out  of  order,  and  said  that  the  clerks  had 
the  floor.     Dr.  Patton   reminded   the   moderator  that  he  had  the 
floor  before  the  clerks.     The  moderator  directed  the  latter  to  pro- 
ceed with  the  roll.     At  its  conclusion  the  moderator  stated,  that  if 
there  were  commissioners  in  the  house,  whose  commissions  had  not 
been  presented,  now  was  the  time  to  present  them.     I  immediately 
rose,  and  stated  that  I  held  in  my  hand  certain  commissions  to 
the  Assembly  of  1838,  that  the  commissioners  to  whom  they  be- 
longed were  present,  that  these  commissions  had  been  presented 
to  the  clerks  of  the  last  General  Assembly  and  by  them  rejected; 
and  moved,  that  the  roll  be  now  completed  by  adding  the  names  of 
the  commissioners  from  the  presbyteries  within  the  bounds  of  the 
Synods  of  Utica,  Geneva,  Genessee  and  the  Western  Reserve.     The 
moderator  asked  if  they  came  from  presbyteries  connected  with 
the  church  at  the  close  of  the  Assembly  of  1S37.     I  answered,  that 
they  came  from  presbyteries  within  the  bounds  of  the  Synods  of 
Utica,  Genessee,  Geneva  and  the  Western  Reserve.     The  moderator 
declared  me  out  of  order.     T  then  said,  that,  with  all  due  respect  to 
him,  I  must  appeal  to  the  house.     My  appeal  was  seconded,  but 
the  moderator  declared  it  out  of  order,  and  refused  to  put  it.     After 
this  the  Rev.  Miles  P.  Squier  rose,  stating  that  he  had  handed  his 
commission  to  the  clerks  and  that  they  had  refused  it,  and  now, 
tendering  it  to  the  house,  he  demanded  a  seat,  and  that  his  name 
should  be  put  on  the  roll.     The  moderator  asked  from  what  pres- 
vbytery  he  came.     Mr.  Squier  answered,  from  the  Presbytery  of 
Geneva.     The  moderator  asked  whether  that  presbytery  belonged 
to  the  Synod  of  Geneva:  Mr.  Squier  answered,  that  it  was  within 
the  bounds  of  the  Synod  of  Geneva.     The  moderator  replied,  "  We 
do  not  know  you."     Then  the  Rev.  John  P.  Cleaveland,  from  the 
Presbytery  of  Detroit,  rose  and  said,  in  substance,  that  as  the  As- 
sembly could  not  be  constitutionally  organized,  unless  by  the  admis- 
sion of  all  the  commissioners  present;  as  some  of  these  commission- 
ers had  been  refused,  and  as  the  moderator  and  clerks  had  not  done 
their  duty,  he  moved,  that  Dr.  N.  S.  S.  Beman  take  the  chair. 

This  motion  was  seconded,  and  was  put  by  Mr.  Cleaveland,  who 
said,  "All  those  who  are  in  favour  of  the  resolution  will  signify  it 
by  saying,  aye,"  and  then  reversing,  "All  those  who  are  opposed 
will  signify  it  by  saying,  no."     Mr.  Cleaveland  declared  Dr.  Beman 


121 

elected.     There  were  some  who  voted  "no."     I  heard  distinctly 
two  or  three  noes.     They  came  from  the  quarter  of  the  house  in 
front  and  to  the  right  of  the  pulpit.     One  person  in  the  pew  imme- 
diately in  front  of  me  said,  "  No !"     1  don't  know  his  name.     Dr. 
Beman  then  stepped  out  of  the  pew  in  Vv^hich  he  was  sitting,  and 
took  his  station  in  the  middle  aisle.     At  that  time,  some  one  nomi- 
nated Mr.  Gilbert  and  myself  as  temporary  clerks.     This  motion 
was  seconded  and  carried.     I  still  had  the  commissions  which  I  had 
offered  in  my  hand,  and  acting  as  clerk,  considered  the  commis- 
sioners to  whom  they  belonged,  of  whom  I  had  a  list,  as  on  the 
roll.     Ur.  Beman  called  for  nominations  for  a  moderator.     Dr. 
Fisher  was  nominated,  and  no  other  person.     Dr.  Beman  put  the 
vote,  and  Dr.  Fisher  was  chosen  by  a  large  majority.     There  were 
some  votes  in  the  negative,  coming  from  the  same  quarter  as  be- 
fore.    Dr.  Beman  declared  Dr.  Fisher  elected,  and  made  way  for 
him  to  take  the  place  which  he  had  occupied.     Dr.  Fisher  took  it 
and  called   for  nominations  for  clerks.     Mr.  Gilbert  and  myself 
were  nominated,  the  question  was  put,  and  we  were  elected.     At 
that  moment.  Dr.  Beman  either  read  a  paper,  or  made  a  statement, 
to  the  purport  that  that  house  could  not  be  occupied  by  the  Assem- 
bly, and  moved  that  we  now  adjourn  to  meet,  forthwith,  in  the  lec- 
ture room  of  the  First  Presbyterian  Church.     This  motion  was  put 
and  carried,  and  Dr.  Fisher  gave  notice  of  the  adjournment,  and 
said  that  any  commissioners  present,  who  had  not  yet  handed  in 
their  commissions  to  the  Assembly,  should  do  so  at  the  First  church. 
Then  the  Assembly  came  to  order  in  the  lecture  room  of  the  church 
on  Washington  Square,  and  Dr.  Patton  offered  the  resolutions  which 
he  wished  to  offer  before.     I  should  here  state,  that  all  the  commis- 
sioners from  the  western  synods  present  were  now  on  the  roll,  and 
several  others  were  enrolled.     Afterwards,  the  business  proceeded 
in  the  usual  manner. 

In  the  church  in  Ranstead  court,  the  moderator  was  further  from 
me,  than  the  body  of  the  Old  School  party.  Most  of  them  were 
between  him  and  me,  and  had  as  good  a  chance  as  he  had,  or  a 
better  one,  to  hear  what  was  said.  All  the  motions  of  which  I  have 
spoken,  were  seconded  by  several  voices.  I  myself  seconded  seve- 
ral of  them.  The  moderator  asked  me  if  the  commissions  which  I 
offered,  were  from  presbyteries  belonging  to  the  excluded  svnods. 
I  answered  that  they  were.  He  then  said  that  they  could  not  be  re- 
ceived. I  then  made  a  tender  of  them  to  him.  When  Dr.  Patton 
rose,  there  were  a  few  calls  to  order,  and  when  I  got  up,  there 
were  several.  These  calls  came  from  that  portion  of  the  house 
occupied  by  the  Old  School  members.  When  Mr.  Cleaveland 
commenced  his  statement,  there  were  loud  cries  of  order,  coughing 
and  scraping,  but  these  ceased  before  he  concluded.  The  calls  to 
order  ceased  before  I  got  through.  There  was  no  material  distur- 
bance during  the  colloquy  between  the  moderator  and  myself:  at 
first  there  were  some  calls  to  order,  but  these  subsided.  All  the 
motions  put,  were  put  in  an  audible  voice,  and  seconded.  Mr. 
Cleaveland's  motion  I  know  was  reversed.  That  on  the  election  of 
moderator  I  am  sure  was ;  and,  to  the  best  of  my  knowledge,  that 

11 


122 

on  the  choice  of  clerks  also.  I  should  think  full  opportunity  was 
given  to  all  the  members  present  to  vote.  The  scraping  and  hiss- 
ing seemed  to  come  from  that  portion  of  the  house  where  the  Old 
School  were.  Standing  as  I  did,  I  could  not  see  what  took  place 
in  that  part  of  the  house ;  my  attention  was  directed  before  ijie. 
When  Mr.  Cleaveland  made  his  remarks,  he  faced  the  moderator. 
I  also  faced  the  moderator  when  I  was  on  the  floor.  So  did  Dr. 
Patton  and  Mr.  Squier.  The  mass  of  the  Old  School  party  was 
between  me  and  the  moderator. 

Mr.  Randall  said  that  he  would  hereafter  examine  this  witness  on 
some  points  not  immediately  connected  with  the  organization  of 
the  Assembly. 

Cross-examination.  Interrogated  by  Mr.  Preston,  the  witness 
said  :  I  am  clerk  of  the  General  Assembly.  I  am  not  in  possession 
of  the  paper  read  by  Mr.  Cleaveland,  and  do  not  know  where  it  is. 
I  do  not  know  whether  the  paper  on  the  minutes  is  that  offered  by 
Mr.  Cleaveland.  I  did  not  prepare  the  minutes:  Mr.  Gilbert,  the 
Permanent  Clerk,  prepared  them.  I  never  saw  the  paper,  or  read 
it.  I  was  in  the  same  pew  with  Dr.  Beman.  He  sat  at  the  door, 
and  Mr.  Cleaveland  at  the  other  end.  I  cannot  recollect  the  others 
who  were  in  the  pew.  I  think  a  gentleman  named  Nixon  was 
there.  The  pew  was  full.  When  I  was  appointed  clerk,  I  took  my 
station  in  the  aisle.  I  stood — had  no  pen  or  ink,  but  had  paper  and 
a  pencil.  I  had  in  my  hand  the  commissions  which  I  had  tendered 
to  the  moderator,  and  a  paper  containing  the  roll  of  the  members 
of  the  General  Assembly,  including  those  who  had  been  rejected  by 
the  clerks.  This  roll  was  on  two  pieces  of  paper,  one  containing 
the  names  previously  read  by  the  clerk,  and  the  other  those  from 
the  western  synods.  I,  in  connexion  with  Mr.  Gilbert,  had  made 
out  this  roll,  partly  from  the  report  of  the  clerks,  and  partly  from 
other  sources,  as  from  the  information  of  persons  who  were  com- 
missioners. I  had  no  commissions  in  my  possession  but  those  which 
1  had  offered.  The  others  were  in  the  possession  of  the  clerks  of 
the  last  Assembly.  My  own  I  had  given  to  the  clerks:  that  is,  it 
had  been  given  to  them.  The  names  of  all  the  commissioners  from 
our  presbytery  were  enrolled  in  one  commission.  I  considered  the 
list  which  I  held  in  my  hand  as  the  roll.  That  was  my  first  act  as 
clerk.  1  had  the  names  on  paper;  and  I  considered  that  putting 
them  on  the  roll  was  my  first  act.  I  had  actually  so  far  put  them 
on  the  roll,  that  if  it  had  been  necessary  to  call  it,  I  could  have 
called  all  the  names.     That  consideration  was  my  first  oflicial  act. 

I  did  not  report  any  roll,  until  we  got  to  the  First  Church.  The 
first  roll  had  already  been  reported  at  the  other  house.  I  reported 
the  additional  names  of  the  commissioners  from  the  four  excinded 
synods.  Mr.  Krebs  had  reported  the  former  at  the  other  house, 
and  I  presume  the  other  commissions  are  in  the  possession  of  the 
clerks  of  1837.  I  cannot  say  precisely  how  many  were  in  the  pos- 
session of  the  clerks  of  our  house.  They  are  not  all  here  in  this 
bundle.  About  a  dozen  were  handed  in  after  our  adjournment,  to 
the  best  of  my  recollection.  Our  roll  was  made  up  of  those  names 
which  we  had  caught  from  the  report  of  Mr.  Krebs,  with  those 


123 

taken  from  these  commissions,  and  from  the  ten  or  twelve  presented 
afterwards.  The  officers  were  chosen  by  a  large  majority,  1  may 
say  without  hesitation,  of  all  who  voted.  There  is  a  rule  contained 
in  the  appendix  to  the  Book  of  Discipline,  which  says,  that  silent 
members  shall  be  considered  as  voting  in  the  affirmative.  If  but 
two  voted  in  the  affirmative,  and  one  in  the  negativ^e,  a  motion  would 
be  carried.  I  have  no  means  for  determining  whether  a  majority 
of  all  the  members  present  voted  in  the  affirmative.  I  should  not 
like  to  say  that  a  majority  did  so  vote ;  but  I  have  no  doubt  that  a 
majority  voted  one  way  or  the  other.  I  cannot  say  how  many  New 
School  men  retired  from  the  Seventh  Church.  More  than  fifty-five 
or  sixty  :  I  should  think  more  than  seventy.  I  cannot  state  whether 
there  were  a  hundred.  I  took  no  account  until  afterwards.  I  judged 
of  the  majority  by  the  sound  of  the  voices,  and  from  the  number 
who  answered  in  the  negative.  I  suppose  that  those  persons  who 
■were  afterwards  in  the  Assembly  with  us,  generally  voted  in  the  af- 
firmative. This  is  one  reason  of  my  conclusion  in  regard  to  the 
majority. 

The  Court  adjourned. 


Monday  morning,  March  Wth. 
Cross-examination  of  Dr.  Mason,  continued. — Interrogated  by  Mr. 
Preston.  I  cannot  say  with  certainty,  whether  the  roll  made  up  in 
the  church  in  Ranstead  court,  was  written  by  myself  I  had  made 
one,  as  far  as  I  could,  before  the  house  met,  and  one  was  furnished 
by  another  person.  I  made  mine  as  full  as  I  could.  I  forget  which 
of  the  two  was  used.  The  deficiency  in  it  was  supplied,  as  the 
clerks  read.  I  took  down  names  in  two  instances  myself,  but  do 
not  recollect  that  I  took  down  more  than  two.  It  was  well  known 
beforehand  who  would  be  the  commissioners — and  their  names  had 
been  published  in  the  newspapers.  The  roll  was  not  verified  at  the 
First  Presbyterian  Church,  by  the  production  of  commissions.  We 
had  not  the  commissions  which  had  been  handed  in  to  the  clerks  of 
1837.  These  [the  ones  contained  in  the  bundle  which  had  been 
given  in  evidence]  are  not  all  the  commissions  which  we  had.  The 
roll  which  we  used  in  organizing  the  Assembly,  was  obtained  from 
the  sources  which  I  have  mentioned.  It  would  have  been  our  duty 
to  examine  the  commissions,  if  they  had  not  been  examined  by  the 
regular  clerks  before.  I  did  examine  each  commission  which  I 
had,  attentively,  according  to  the  rules  of  the  church.  To  the  best 
of  my  recollection,  I  found  them  all  regular.  I  do  not  remember 
finding  any  fault.  In  making  the  roll,  I  did  not  compare  these  com- 
missions with  the  form  prescribed.  The  constitution  does  not  pre- 
scribe any  form,  or  at  least  any  form  which  is  obligatory,  which 
must  strictly  be  adhered  to.  It  gives  a  form,  and  then  says,  "  this 
or  a  like  form,"  shall  be  used.  This  [a  commission  from  the  Pres- 
bytery of  Geneva  having  been  handed  to  him]  is  one  of  those  that 
I  examined.  I  would  pronounce  it  regular.  I  approved  of  it  at 
that  time. 


124 

I  appealed,  when  the  moderator,  refused  to  put  my  motion.  I  said 
that,  "  with  the  greatest  respect  for  the  chair,  I  must  appeal  from 
that  decision."  The  right  of  appeal  is  certainly  known  to  our  con- 
stitution ;  for  appeals  are  often  made.  I  cannot  recollect  whether 
the  right  is  expressly  granted  in  the  constitution.  It  is  provided  for 
in  the  regulations  which  have  been  made  by  the  Assembly,  and  re- 
commended by  them  to  all  the  courts  of  the  church.  An  appeal  is 
made  to  every  member  present  at  the  time  in  the  house.  When 
the  General  Assembly  is  organized,  an  appeal  is  made  to  the  house 
as  organized.  I  intended  to  make  mine  to  all  those  who  had  com- 
missions. All  there,  who  held  commissions,  were  unquestionably 
members  of  the  Assembly  of  1838,  and  my  appeal  was  made  to 
them.  I  made  it  to  all  the  persons  present,  who  had  commissions: 
them  I  considered  members  of  the  Assembly  of  1838.  I  intended 
10  appeal  from  the  moderator,  to  all  the  persons  present  who 
had  commissions,  whom  I  considered  members  of  the  Assembly. 
I  am  comparatively  a  young  man,  and  therefore  cannot  speak 
with  certainty  as  to  the  practice.  I  know  it  is  very  common  in  the 
General  Assembly,  to  take  an  appeal  to  the  body  over  which  the 
moderator  presides. 

Our  constitution  will  tell  you,  that  Dr.  Elliott  was  presiding  in  the 
organization  of  the  Assembly,  until  a  new  moderator  should  be  ap- 
pointed. This  is  my  opinion.  A  new  moderator  had  not  been  ap- 
pointed when  I  took  my  appeal.  The  new  officers  of  the  Assembly^ 
as  I  stated  yesterday,  took  their  station  in  the  middle  aisle.  They 
were  all  nearly  in  contact.  Dr.  Beman,  when  called  upon,  stepped 
out  of  the  pew  in  which  he  had  been  sitting,  and  took  his  place  in 
the  middle  aisle. 

Dr.  Beman  declared  Dr.  Fisher  elected.  I  cannot  recollect  whe- 
ther Dr.  Fisher  was  standing  on  the  seat.  The  distance  between 
the  two  was  not  great.  Dr.  Beman  stepped  back,  and  Dr.  Fisher 
took  his  place.  He  did  not  call  the  Assembly  to  order,  but  called 
for  business.  I  don't  know  that  many  were  standing  on  the  seats 
of  the  pews.  These  things  were  transacted  as  rapidly  as  they 
could  conveniently  be.  I  cannot  say  what  Dr.  Elliott  was  doing  at 
this  time.  After  Mr.  Cleaveland's  motion  I  did  not  pay  particular 
attention  to  him,  don't  know  whether  he  retained  his  seat,  or  whe- 
ther he  used  the  hammer,  or  called  us  to  order.  I  cannot  say  that 
the  New  School  party  were  generally  standing  up:  some  of  them 
were.  My  attention  was  directed  to  what  was  passing  around  me, 
and  I  did  not  see  the  old  moderator  or  clerks.  J  do  not  know  that 
any  proceedings  were,  during  this  time,  carried  on  by  them;  didn't 
hear  any  business  going  on  in  that  quarter;  had  the  roll  made  out, 
and,  while  Mr.  Krebs  was  reading,  made  notes  with  my  pencil. 
There  were,  on  the  roll  which  was  called  at  the  First  Presbyterian 
Church,  the  names  of  persons  who  did  not  appear  till  some  davs 
afterwards;  but  they  were  all  on  the  roll  reported  by  the  clerks  of 
1837.  I  recollect  that  such  was  the  case  in  regard  to  Mr.  Boynton, 
an  elder  from  the  Synod  of  Albany;  do  not  recollect  that  Mr.  Mar- 
tin and  Mr.  Fabrigue,  from  Salem  Presbytery,  did  not  appear  at 
the  opening  of  the  Assembly.     I  don't  remember  at  what  tim.e  Mr 


125 

Glover,  or  Mr.  Stewart,  from  Charleston  Union  Presbytery,  ap- 
peared; recollect  only  the  case  I  have  mentioned;  but  think  there 
"were  others  of  the  same  kind.  Mr.  Boynton  was  enrolled ;  but  I 
don't  know  whether  he  ever  took  his  seat  with  us.  I  cannot  tell 
exactly  how  many  took  their  seats  in  our  General  Assembly;  but 
the  number  enrolled  was  not  far  from  one  hundred  and  thirty. 
Nearly  the  whole  of  these  took  their  seats.  I  do  not  include  those 
who  remained  in  the  church  in  Ranstead  court.  The  whole  roll 
included  those.  My  opinion  is  that  a  majority  of  all  on  the  full  roll 
did  not  take  seats  with  us. 

I  used  to  belong  to  the  Synod  of  Albany,  and  therefore  Mr. 
Boynton's  name  was  impressed  upon  my  memory. 

I  don't  recollect  whether  Dr.  Green's  name  was  on  our  roll.  Ho 
did  not  sit  with  us;  nor  Mr.  Robert  J.Breckinridge.  The  casi; 
which  I  mentioned  was  hke  one  of  these:  Mr.  Breckinridge  is 
therefore  another  instance.  I  never  attended  the  Assembly  at  the 
church  in  Ranstead  court  after  we  left  there.  I  went  once  to  the 
house,  but  the  Assembly  had  adjourned.  I  think  Dr.  Phillips  had 
been  moderator  next  before  Dr.  Elliott.  I  do  not  know  whether  he 
was  present.  To  the  best  of  my  recollection,  the  one  next  before 
him  was  Dr.  William  A.  M'Doweil,  but  I  don't  know  whether  he 
was  present.  I  don't  recollect  whether  Dr.  Witherspoon  of  South 
Carolina  was  the  one  before  him  or  not.  He  was  moderator  either 
in  1835  or  1836.  Each  of  them  has  held  that  office  since  Dr. 
Beman. 

Interrogated  by  Mr.  Huhhell,  the  witness  said:  Mr.  Boynton's 
name  was  read  by  the  clerks  of  1837,  and  in  this  way  I  know  that 
it  was  put  on  our  roll.  I  saw  afterwards  their  printed  roll ;  Mr. 
Boynton's  name  was  not  on  it.  I  do  not  recollect  whether  the 
the  names  of  Mr.  S.  Glover  and  Mr.  R.  L.  Stewart,  elders  from 
Charleston  Union  Presbytery,  were  on  our  roll.  [Being  pointed  to 
the  roll  on  the  minutes,  witness  said]  they  are  on  the  list.  They 
did  not  attend  our  Assembly.  I  don't  know  how  I  got  their  names. 
I  do  not  recollect  from  which  presbytery  Mr.  Boynton  came — I 
think  it  was  either  Londonderry  or  Newburyport.  Messrs.  Glover 
and  Stewart  never  answered  to  their  names,  and  did  not  present 
commissions.  I  had  nothing  to  do  with  taking  names  off  the  roll 
after  the  Assembly  was  organized.  I  had  something  to  do  with  the 
preparation  of  the  minutes  for  publication.  I  cannot  state  whether 
I  heard  their  names  read  from  the  roll  of  the  clerks  of  1837.  If 
not  on  their  roll,  we  had  no  reason  for  putting  them  on  ours,  and 
they  ought  not  to  have  been  put  there.  I  don't  recollect  whether 
their  names  are  on  the  printed  roll  of  1838.  Mr.  William  W.  Mar- 
tin, and  Mr.  Henry  L.  Fabrigue,  were  on  our  roll;  I  don't  know 
whether  they  were  on  Mr.  Krebs's  roll.  I  don't  reme-mber  examin- 
ing the  commissions  of  either.  Their  names  had  been  published. 
We  had  no  authority  to  put  down  any  but  those  on  Mr.  Krebs's 
roll.  I  can't  say  whether  I  took  them  from  that ;  if  not,  I  probably 
took  them  from  the  newspapers.  Mr.  Bray  ton,  from  the  Presby- 
tery of  Oneida,  I  think  presented  his  commission  originally  to  me, 
and  I  examined  it.     I  do  not  recollect  in  regard  to  Dr.  James 

11* 


126 

Richards  of  Cayuga,  but  think  his  case  was  similar  to  Mr.  Bray- 
ton's.     I  think  I  examined  the  commission  of  the  Rev.  Samuel  W. 
Brace.    He  was  from  the  Presbytery  of  Cayuga  :  Dr.  Ricliards  and 
he  were  in  the  same  commission,  but  not  as  principal  and  alternate. 
They  came  in  after  the  opening  of  the  Assembly.     We  had  the 
commission  of  Mr.  Justin  Marsh,  of  Marshall  Presbytery.     Mr. 
Adam  Miller,  of  the  Presbytery  of  Montrose,  came  to  our  body,  in 
the  First  Presbyterian  Church.     There  was  some  difficulty  in  re- 
gard to  his  commission.     His  case  was  referred  to  the  Committee 
of  Elections,  and  he  w-as  admitted.   I  do  not  remember  Mr.  Jotham 
Goodell.     To  the  best  of  my  recollection,  we  had  the  commis^on 
of  Dr.  John  H.  Haynes,  an  elder  from  the  Presbytery  of  Troy.     I 
cannot  say  whether  Dr.  Witherspoon  was  present   in  Ranstead 
court:  I  don't  know  him.     I  do   not   recollect  that  inquiry  was 
made  whether  any  person  who  had  been  moderator  subsequently 
to  Dr.  Beman,  was  present;  nor  whether  we  called  the  names  of 
Dr.  Witherspoon  and  Dr.  Phillips  on  our  roll.     They  were  both  on 
it.     They  did  not  present  their  commissions  to  us.     I  don't  remem- 
ber whether  I  took  their  names  from  Mr.  Krebs's  roll. 

Interrogated  by  Mr.  Ivgersoll.  I  recollect  that  the  sexton  of  the 
First  Church  was  at  ihe  other  house,  and  that  when  we  adjourned, 
he  ran  off"  before  us.     I  saw  him  going  on  before  us. 

j¥r.  Wood,  of  counsel  for  the  relators,  here  inquired  of  the  wit- 
ness: What  complaints  were  made,  in  the  Assembly  of  1837,  in 
regard  to  irregularities  in  the  Synods  of  New  Jersey  and  Albany? 

Mr.  Huhbell  objected  to  the  question. 

Mr.  Wood  then  asked :  Were  there  any  Congregational  churches 
in  those  synods? 

Mr.  Huhbell  still  objected. 

The  plaintiffs  then  gave  in  evidence  extracts  from  the  minutes, 
1837,  page  496-7. 

Ur.  Cuyler,  from  the  committee  appointed  to  consider  and  report  to  the  Assem- 
bly on  the  subject  of  citing  inferior  judicatories,  presented  a  report,  which  was 
amended  and  adopted,  and  is  as  follows,  viz: 

The  committee  believe  that,  for  the  present,  there  is  no  urgent  necessity  to  cite 
any  inferior  judicatories;  and  after  what  has  been  done  toward  the  reform  of  the 
church  during  the  present  sessions  of  the  General  Assembly,  they  believe  it  will  be 
best  to  wait  for  a  time,  without  further  decisive  action,  in  the  hope  that  those  por- 
tions of  the  church  against  which  serious  charges  are  stdl  made  by  common  fame, 
will  see  the  necessity  of  taking  order  on  the  subject,  and  doing,  without  delay, 
what  truth  and  righteousness  may  require  of  them. 

We  deem  it  proper,  however,  to  say,  that  several  of  the  synods  are  so  seriously 
char"-ed,  in  several  respects,  that  this  Assembly  would  be  wanting  in  faithfulness 
to  itself,  to  them,  and  to  the  cause  of  Christ,  as  well  as  to  the  principles  of  justice 
and  fair  dealing,  in  carrying  out  its  own  principles,  if  it  did  not  specially  urge  seve- 
ral of  them  to  g-ive  prompt  and  particular  attention  to  certain  matters,  in  which 
thev,  or  some  of  their  presbyteries  or  churches,  are  specially  charged.  We, 
therefore,  recommend  the  adoption  of  the  following  resolutions,  viz: 

1.  Resolved,  That  the  Synods  of  Albany  and  New  Jersey  be  enjoined  to  take 
special  order  in  regard  to  the  subject  of  irregularities  in  church  order,  charged  by 
common  fame,  upon  some  of  their  presbyteries  and  ciiurches. 

2.  That  the  Synod  of  Michigan  be  enjoined  to  take  special  order  in  regard  to 
the  subject  of  errors  in  doctrine,  so  charged  upon  all  its  presbyteries. 

3.  That  the  Synod  of  Cincinnati  be  enjoined  to  take  special  order  in  regard  to 
error  in  doctrine,  so  charged  as  being  connived  at  by  several  of  its  presbyteries, 
and  held  by  some  of  its  members. 


127 

4.  That  tlie  Synod  of  Illinois  be  enjoined  to  take  special  order  in  regard  to 
errors  in  church  order  and  errors  in  doctrine,  so  charged  upon  several  of  its  pres- 
byteries. 

5.  That,  besides  the  general  reference  to  the  \yord  of  God  and  our  standards, 
we  refer  the  synods  above  named  to  the  testimony  of  this  General  Assembly  as  to 
the  nature  of  the  errors  and  irregularities,  intended  by  it,  in  these  resolutions;  and 
said  synods  are  enjoined  to  take  order  on  the  subjects  now  referred  to  them  for 
consideration  and  action,  at  their  first  stated  meeting  after  this  Assembly  adjourns; 
and  to  report  their  doings  herein,  with  whatever  else  seems  to  them  necessary  to 
elucidate  the  whole  subject,  in  writing,  to  the  next  General  Assembly. 

6.  And  the  said  five  synods  are  especially  enjoined,  and  all  other  synods  in  our 
bounds  are  required,  to  cause  to  be  laid  before  the  next  General  Assembly,  as  far 
as  possible,  copies  of  all  the  abbreviated  creeds  and  church  covenants  in  use 
amongst  their  churches;  wliich  subject  is  also  particularly  commended  to  all  our 
presbyteries,  both  in  relation  to  the  present  demand,  and  with  reference  to  the  tes- 
timony of  this  Assembly  on  that  subject. 

Mr.  Wood  then  said:  Now  I  wish  to  have  this  matter  explained. 
The  Court  decided,  that  the  inquiry  whether  the  proceedings  of 
the  Assembly  as  to  the  excinded  synods  was  impartial,  was  foreign 
to  the  case,  the  point  to  be  decided  having  respect  to  their  legality. 
D7\  Mason  resumed. — By  direction  of  the  Assembly  of  1838,  I 
went  to  Dr.  M'Dowell,  and  demanded  from  him  the  books  and  pa- 
pers of  the  Assembly,  and  the  commissions  that  were  in  his  posses- 
sion. He  declined  giving  me  any  paper.  Mr.  Cleaveland,  prelimi- 
nary to  his  motion,  stated,  in  substance,  that  as  it  seemed  impos- 
sible to  organize  the  Assembly  of  183S,  under  its  present  officers, 
since  a  number  of  commissioners  had  been  refused  their  seats,  and 
as  it  was  necessary  to  proceed  to  its  organization,  he  hoped  it  would 
be  considered  a  matter  not  of  discourtesy  but  of  necessity ;  and  he 
moved  that  Dr.  Beman  should  take  the  chair. 

This  commission  is  the  one  which  Mr.  Squier  presented.  I  never 
saw  Mr.  Boynton  during  the  meeting  of  the  Assembly.  Mr.  Krebs' 
roll  might  have  contained  the  name,  though  it  did  not  appear  on 
the  printed  roll. 

Sometimes  the  names  of  all  the  delegates  from  a  presbytery  are 
on  one  commission,  and  therefore,  though  one  of  the  commissioners 
is  not  present,  his  name  may  get  on  the  roll.  I  don't  know  how  it 
was  in  this  case. 

Cross-examination  resumed. — There  was  no  written  communica- 
tion made  to  Dr.  M'Dowell,  in  regard  to  the  papers  of  the  Assem- 
bly. Mr.  Krebs,  when  I  called  on  him,  was  not  at  home.  I  ad- 
dressed a  note  to  him,  and  received  an  answer. 

Mr.  Randall  now  called  on  Mr.  Krebs  for  the  original  roll  of  the 
Assembly  of  1838. 

Mr.  Krehs  said:  It  is  in  the  hands  of  Dr.  M'Dowell. 

Mr.  Randall  While  waiting  for  the  roll,  I  will  read  in  evidence 
a  portion  of  the  minutes  of  1S37. 

Mr.  Preslon  objected  to  the  reading  of  extracts,  unless  the  whole 
minutes  were  in  evidence. 

Jud.ge  Rogers.  Each  part  that  is  pertinent  to  the  issue  I  consider 
in  evidence;  and  as  to  the  pertinency  of  any  part,  the  Court  must 
determine. 

The  plaintiffs  then  gave  in  evidence  the  minutes  of  the  organiza- 
tion of  the  Assembly  of  1837,  pages  411  to  415,  as  follows: 


128 

The  General  Assembly  of  the  Presbyterian  Church,  in  the  United  States  of  Ame- 
rica, met  agreeably  to  appointment,  in  the  Central  Presbyterian  Church,  in  the  city 
of  Philadelphia,  on  Thursday,  the  18th  day  of  May,  1837,  at  11  o'clock  A.M.;  and  was 
opened  with  a  sermon  by  the  Rev.  John  Witherspoon,  D.D.,  the  moderator  of  the 
last  Assembly,  from  1  Corinthians,  i.  10,  11:  "Now  I  beseech  you,  brethren,  by 
the  name  of  our  Lord  Jesus  Christ,  that  ye  all  speak  the  same  thing,  and  that  there 
be  no  divisions  among  you;  but  that  ye  be  perfectly  joined  together  in  the  same 
mind,  and  in  the  same  judgment.  For  it  hath  been  declared  to  me  of  you,  my 
brethren,  by  them  which  are  of  the  house  of  Chloe,  that  thei'c  are  contentions 
among  you." 

After  public  worship,  the  Assembly  was  constituted  with  prayer,  in  the  Lecture 
room  of  the  Central  Church,  and  had  a  recess  until  four  o'clock. 

At  four  o'clock  the  Assembly  met. 

The  standing  committee  of  commissions  reported  that  the  following  persons  pre- 
sent have  been  duly  appointed  commissioners  to  this  General  Assembly,  viz. 

[The  roll  of  members  follows.] 

The  committee  further  reported  that  Mr.  David  B.  Ayres,  a  ruling  elder  from 
the  Presbytery  of  Illinois,  had  appeared  without  a  commission;  and  that  the  Rev. 
Bliss  Burnap,  of  the  Presbytery  of  Champlain,  and  Mr.  Henry  Brown,  a  ruling 
elder  from  the  Presbytery  of  Lorain,  had  pi-esented  commissions  without  the  sig- 
nature of  the  moderator. 

These  cases  were  referred  to  Mr.  Cleaveland,  Mr.  Murray,  and  Mr.  Ewing,  as  a 
committee  of  elections. 

Dr.  Cuyler,  Mr.  A.  White,  and  Mr.  Symington,  were  appointed  a  committee  to 
inquire  whether  a  more  convenient  place  can  be  obtained  for  the  sessions  of  the 
Assembly. 

The  committee  of  elections  reported  in  favour  of  i-eceiving  the  members  whose 
cases  were  referred  to  them;  and  it  was  ordered  that  their  names  be  inserted  in 
the  roll  of  commissioners. 

Rev.  David  Elliott,  D.D.,  was  elected  moderator,  and  Rev.  Horace  S.  Pratt, 
temporary  clerk. 

Rev.  John  M.  Krebs  was  elected  permanent  clerk,  in  the  place  of  Rev.  Dr.  John 
M'Dowell,  elected  stated  clerk  by  the  last  Assembly. 

Resolved,  That  the  permanent  clerk  have  printed,  for  the  use  of  the  Assembly, 
1000  copies  of  the  roll. 

As  evidence  that  the  constitution  does  not  require  that  the  minister 
presiding  at  the  organization  of  the  General  Assembly  should  have 
been  previously  a  moderator,  the  plaintiffs  here  read  from  the  Form 
of  Government,  chap.  xii.  sec.  7,  p.  365,  Mr.  Randall  remarking  on 
the  words  "  some  other  minister,"  as  follows : 

The  General  Assembly  sliall  meet  at  least  once  in  every  year.  On  the  clay  ap- 
pointed for  that  purpose,  the  moderator  of  the  last  Assembly,  if  present,  or,  in  case 
of  his  absence,  some  other  minister,  shall  open  the  meeting  with  a  sermon,  and 
preside  until  a  new  moderator  be  chosen.  No  commissioner  shall  have  a  right  to 
deliberate  or  vote  in  the  Assembly  until  his  name  shall  have  been  enrolled  by  the 
clerk,  and  his  commission  pubUcly  read,  and  filed  among  the  papers  of  the  As- 
sembly. 

In  this  connexion,  Mr.  Randall  said,  he  would  also  read  from  the 
appendix  to  the  hook  called  the  Constitution  certain  rules,  which  the 
Assembly  had  recommended  to  be  adopted  by  all  the  judicatories, 
but  which  were  in  no  sense  constitutional  rules,  and  were  adopted, 
or  not,  by  each  General  Assembly,  and  by  the  other  judicatories, 
as  they  saw  fit. 

General  rules  for  judicatories. — 1.  The  moderator  shall  take  the  chair  precisely  at 
the  hour  to  which  the  judicatory  stands  adjourned:  he  shall  immediately  caU  the 
members  to  order;  and,  on  the  appearance  of  a  quorum,  shall  open  the  session 
with  prayer. 

2.  If  a  quorum  be  assembled  at  the  hour  appointed,  and  the  moderator  be  absent, 
the  last  moderator  present  shall  be  requested  to  take  his  place  without  delay. 


\ 


129 

Rev.  E.  W.  Gilbert,  recalled  by  Mr.  Randall,  said  :  It  was  by  a 
mistake  of  the  printing  committee  that  the  names  of  Messrs.  Martin 
and  Fabrigue  appeared  on  the  printed  roll.  They  were  not  on  the 
previous  record;  but  the  committee  took  a  wrong  roll. 

Cross-examination. — Interrogated  by  Mr.  Preston,  the  witness 
said  :  The  roll  which  I  used  was  taken  originally  from  that  of  Mr. 
Krebs,  and  amended  by  the  addition  of  names  from  commissions 
appearing  afterward.  I  took  the  roll  as  he  read,  by  the  assistance 
of  such  preparation  as  I  had  been  able  to  make  before.  The  names 
had  been  published  in  the  Presbyterian :  I  took  some  from  that, 
some  from  persons  who  held  commissions,  and  some  from  other 
sources.  Then  while  Mr.  Krebs  read,  I  watched,  and  erased  or 
inserted  names,  according  to  circumstances.  After  he  had  finished, 
I  could  have  repeated  the  roll,  just  as  he  read  it.  I  mean  to  say  that 
I  corrected  my  roll,  which  had  been  prepared  from  the  Presbyterian 
and  other  sources,  by  the  reading  of  Mr.  Krebs — made  the  correc- 
tions as  well  as  I  could — had  not  the  commissions  of  all  the  members. 
Probably  I  had  about  a  third  of  them.  I  think  I  saw  the  commis- 
sions of  more  than  one  half  They  were  handed  to  me  by  the  per- 
sons who  held  them.  I  saw  the  commissions  from  all  the  excinded 
presbyteries,  and  many  others,  before  they  were  presented  at  the 
Seventh  Church.  They  were  not  submitted  to  me,  as  clerk  of  the 
General  Assembly.  I  was  acting  in  an  official  capacity — ^was  clerk 
of  the  consultative  meeting. 

[^Mr.  Preston  inquired  whether  it  was  as  clerk  of  the  meeting  for 
consultation,  that  the  witness  saw  those  commissions  ?  The  coun- 
sel for  the  relators  objected  to  the  question,  and  the  court  ruled  it 
out.] 

They  were  not  presented  to  me  as  clerk  of  any  body.  I  was  re- 
quested by  some  one,  I  cannot  tell  who,  to  look  at  them. 

There  was  no  formal  request  made  by  any  organized  body ;  but 
some  one  suggested  that  it  would  be  best  for  us  to  see  the  commis- 
sions. By  "  us,"  I  mean  the  delegates  to  the  consultation  meeting. 
We  saw  the  commissions  in  the  lecture  room  ot  the  First  Presby- 
~  terian  church,  in  the  hands  of  the  members,  previous  to  the  meet- 
ing of  the  Assembly.  I  did  not  see  them  in  the  hands  of  Mr.  Krebs. 
I  did  not  see  all,  but  I  should  say,  not  far  from  half — perhaps  from 
one  hundred  and  thirty  to  a  hundred  and  forty.  I  cannot  say 
whether  I  saw  any  of  the  commissions  of  the  Old  School,  but  think 
J  did — using  the  term  Old  School  here  as  designating  a  party  in 
church  politics.  I  had  seen  the  paper  which  was  presented  by  Mr. 
Cleaveland.  The  substance  of  it  is  on  our  records.  The  paper  on 
the  record,  I  think,  is  nearly  the  same,  but  not  identical ;  perhaps  it 
contains  something  taken  from  his  interspersed  remarks.  It  con- 
tains a  few  things  which  I  did  not  myself  hear.  He  held  the  paper 
in  his  hand,  and  read,  interspersing  it  with  remarks,  some  of  which 
were  to  Dr.  Elliott.  Some  things  are  in  the  record  which  I  did  not 
hear,  though  I  thought  I  heard  every  word.  I  did  not  see  the  paper 
in  its  last  shape.  I  am  the  recording  clerk,  and  copied  the  minute 
from  a  paper  presented,  but  it  was  not  the  one  from  which  Mr. 
Cleaveland  read. 


130 

Interrogated  by  Mr.  Hubbell,  the  witness  said:  Tiie  insertion  of  the 
names  of  Messrs.  Martin  and  Fabrigue,  I  have  said,  was  a  mistake 
of  the  printing  committee.  I  requested  them  to  insert  the  roll  at  a 
particular  place,  and  they  inserted  a  wrong  one.  I  did  not  see  the 
proof,  and  cannot  say  from  what  they  printed.  I  furnished  the  roll 
for  printing.  There  was  a  roll  read  at  the  opening  of  our  Assem- 
bly, with  those  names  upon  it.  This  is  not  the  roll  completed  by 
the  clerks ;  there  is  that  error  in  it.  The  names  of  these  two  men 
were  called  at  the  opening  of  our  Assembly,  and  afterwards,  per- 
haps for  some  days,  but  not  very  long.  The  error  was  discovered 
and  corrected.  I  do  not  know  that  there  is  any  necessity  for  in- 
serting the  roll  on  the  minutes ;  it  is  customary  to  do  so.  I  struck 
out  the  two  names  by  erasure — I  cannot  say  when.  There  was 
perhaps  more  than  one  copy  of  the  original  roll,  and  perhaps  that 
occasioned  the  mistake.  With  my  roll,  which  had  not  these  two 
names  upon  it,  before  them,  the  printing  committee  probably  took 
the  two  names  from  another  roll.  I  struck  their  names  off,  because 
I  found  I  had  made  a  mistake.  I  saw  a  notice  in  the  papers,  that 
these  gentlemen  sat  in  the  other  Assembly.  The  names  of  Glover 
and  Stewart,  I  must  have  understood,  were  on  Mr.  Krebs's  roll.  I 
think  it  very  probable  I  made  a  mistake  as  to  these  two  also.  My 
recollection  in  regard  to  the  matter  is  not  very  distinct.  We  called 
the  names  of  all  those  who  remained  in  the  church  in  Ranstead 
Court,  regularly,  once  a  day,  until  the  close  of  our  session.  I  do 
not  now  recollect,  whether,  when  I  gave  the  roll  to  the  printing 
committee,  I  knew  that  I  had  made  a  mistake  as  to  Messrs.  Glover 
and  Stewart.  So  far  as  I  remember,  I  had  not  discovered  the 
error. 

Mr.  Wood  requested  the  witness  to  look  at  the  remarks  of  Mr. 
Cleaveland,  as  they  are  recorded  in  the  minutes,  p.  635,  and  read 
them  aloud. 

The  witness  then  read  as  follows : 

The  Rev.  John  P.  Cleaveland,  of  the  Presbytery  of  Detroit,  rose,  and  stated  in 
substance  as  follows  :  That  as  the  commissioners  to  the  General  Assembly  for 
1838,  from  a  large  number  of  presbyteries,  had  been  refused  their  seats  ;  and  as 
we  had  been  advised  by  counsel  learned  in  the  law,  that  a  constitutional  organiza- 
tion of  the  Assembly  must  be  secured  at  this  time  and  in  this  place,  he  trusted  it 
would  not  be  considered  as  an  act  of  discourtesy,  but  merely  as  a  matter  of  neces- 
sity, if  we  now  proceed  to  organize  the  General  Assembly  of  1838,  in  the  fewest 
words,  the  shortest  time,  and  with  the  least  interruption  practicable.  He  there- 
fore moved  that  Dr.  Beman,  from  tlie  Presbytery  of  Troy,  be  moderator,  to  preside 
till  a  new  moderator  be  chosen. 

The  witness  then  continued.  Mr.  Cleaveland  did  not  address  the 
moderator  by  his  name ;  his  face  was  towards  the  moderator,  but 
he  did  not  say,  "  Mr.  Moderator."  I  did  not  hear  the  word  "  inter- 
ruption," and  some  others.  He  said,  in  addition  to  what  is  there 
recorded,  that  it  was  no  matter  in  what  part  of  the  house  the  mo- 
derator stood.  I  don't  recollect  any  other  additional  words.  He 
had  a  paper,  from  which  he  read,  and  he  interspersed  the  reading 
with  parenthetical  remarks.  I  supposed  him  to  read  the  whole  of 
the  paper.  This  which  I  have  just  read  is  the  paper,  in  substance. 
It  contains  every  main  idea  of  his  speech,  so  far  as  I  recollect 


131 

Cross-examined. — Interrogated  by  Mr.  Hubhell. — It  is  usual,  in 
cases  of  an  unusual  or  difficult  character,  or  where  there  is  any 
peculiarity,  to  appoint  a  committee  to  prepare  a  minute.  This  was 
done  in  the  present  case.  The  committee  reported  the  minute,  and 
it  was  adopted. 

Rev.  Samuel  Fisher,  D.  D.,  called  by  the  plaintifls,  and  interro- 
gated by  Mr.  Randall,  said :  I  was  a  member  of  the  Assembly  of 
1838,  from  the  Presbytery  of  Newark,  in  the  Synod  of  New  Jersey. 
I  attended  the  meeting  on  the  3d  Thursday  in  May,  in  the  Seventh 
Presbyterian  church.     I  went  about  half-past  ten  o'clock,  (am  not 
quite  positive  as  to  the  time,)  handed  in   my  commission  to  Dr. 
M'Dowell,  in  the  committee-room,  and  then  going  round  to  the 
east  door,  walked  down  the  side  aisle.     I  found  the  seats  near  the 
pulpit  occupied.     I  spoke  to  Dr.  Green  and  others,  and  sat  down  on 
a  bench  in  front  of  the  pews;  but  finding  this  seat  uncomfortable,  I 
walked  up  the  aisle  about  one-fourth  of  the  distance  from  the  front 
pew  to  the  rear  of  the  church,  found  a  pew  not  yet  full,  and  took  a 
seat  at  the  far  end  of  it.    Dr.  Elliott,  after  concluding  his  discourse, 
gave  notice,  that,  after  the  blessing  had  been  pronounced,  he  would 
take  the  seat  before  the  pulpit,  and  proceed  to  constitute  the  As- 
sembly.   Accordingly,  he  came  down,  and  constituted  the  Assembly 
by  prayer.     As  soon  as  he  had  prayed.  Dr.  Patton  rose,  and  ad- 
dressed him,  saying  that  he  had  some  resolutions  which  he  desired 
to  offer.     The  moderator  told  him  he  was  out  of  order;  that  the 
first  business  was  the  report  of  the  clerks  upon  the  roll.    Dr.  Patton 
replied  that  his  resolutions  related  to  the  roll,  and  he  was  very  de- 
sirous to  present  them  at  that  time.     The  moderator  told  him  he 
was  out  of  order  the  second  time,  and  directed  the  clerk  to  proceed 
with  the  roll.     Dr.  Patton  appealed  from  the  decision,  and  his  ap- 
peal was  seconded.     The  moderator  declared  the  appeal  out  of 
order,  and  refused  to  put  it  to  the  house ;  said  that  the  next  business 
was  the  report  upon  the  roll,  and  that  the  clerks  had  the  floor.    Dr. 
Patton  said  that  he  had  the  floor  before  the  clerks.    The  moderator 
told  him  he  was  out  of  order;  and  he  then  sat  down.     The  clerk 
finished  the  roll,  and  stated  that  there  had  been  some  informal  com- 
missions presented ;  I  think  it  was  at  this  time  a  committee  of  elec- 
tions was  appointed.    Dr.  Mason  then  rose,  and  presented  a  resolu- 
tion to  this  effect :  that  the  names  of  the  commissioners  from  the 
four  Synods  of  Utica,  Geneva,  Genessee,  and  Western  Reserve, 
should  be  added  to  the  roll ;  stating  that  they  had  been  presented  to 
the  clerks,  and  by  them  refused.    He  was  called  to  order.    Then  a 
conversation  took  place  between  him  and  Dr.  Elliott.     Dr.  Elliott 
asked,  whether  those  commissions  came  from  presbyteries  within 
the  bounds  of,  or  belonging  to,  the  Presbyterian   Church  at  the 
close  of  the  sessions  of  the  Assembly  in  1S37.     Dr.  Mason  replied, 
that  they  were  within  the  bounds  of  the  four  synods,  repeating  their 
names  again.     The  moderator  said,  "  they  cannot  be  received." 
Dr.  Mason  replied,  that  he  must,  respectfully,  appeal  to  the  house 
from  that  decision.     His  appeal  was  seconded ;  but  the  moderator 
declared  it  to  be  out  of  order.     Dr.  Mason  then  held  up  the  bundle 
of  commissions,  and,  I  think,  demanded  that  the  names  should  be 


132 

put  upon  the  roll.  He  was  again  pronounced  out  of  order;  and  he 
sat  down.  Immediately,  Rev.  Miles  P.  Squier  rose,  on  the  opposite 
side  of  the  aisle,  and  held  up  a  commission,  which  he  said  he  had 
from  the  Presbytery  of  Geneva.  He  said  it  had  been  presented  to 
the  clerks,  but  they  had  refused  to  receive  it.  The  moderator  asked 
if  the  Presbytery  of  Geneva  belonged  to,  or  was  connected  with, 
the  Synod  of  Geneva.  Mr.  Squier  answered,  that  it  was  within 
the  bounds  of  the  Synod  of  Geneva.  The  moderator  replied,  "  We 
do  not  know  you."  Then  Mr.  Cleaveland,  from  the  Presbytery  of 
Detroit,  rose,  with  a  paper  in  his  hand,  but  did  not  read  all  his  re- 
marks from  the  paper.  I  sat  in  the  next  pew  to  him,  and  had  seen 
the  paper  before.  He  prefaced  by  saying,  that  whereas  the  mo- 
derator and  clerks  had  refused  to  receive  a  number  of  commissions 
from  different  presbyteries  to  the  Assembly,  and  had  repeatedly  re- 
fused to  perform  the  duties  incumbent  upon  them,  so  that  the  As- 
sembly could  not  be  regularly  organized;  and  as  we  had  been  ad- 
vised by  counsel,  learned  in  the  law,  that  the  Assembly  must  be 
organized  at  that  time,  and  in  that  place,  therefore  he  moved  that 
Dr.  Beman  should  be  moderator,  (as  I  understood  it,)  of  the  pre- 
liminary meeting.  This  motion  was  seconded,  put  to  vote  by  Mr. 
Cleaveland,  and  carried  by  a  large  majority.  Dr.  Beman  stepped 
out  of  the  pew,  and  walked  up  the  aisle  (the  width  of  three  or  four 
slips)  a  short  distance  from  me,  and  stated,  that  the  next  business 
would  be  the  election  of  clerks.  Dr.  Mason  and  Mr.  Gilbert  were 
nominated ;  the  nomination  was  seconded,  and  the  question  put,  and 
carried  by  a  large  majority.  Afterwards  he  stated,  that  the  next 
business  was  the  election  of  a  moderator.  Some  person  nominated 
me ;  the  nomination  was  seconded,  and  the  question  was  put,  and 
carried  by,  what  I  esteemed,  a  large  majority.  I  rose  from  my  seat 
— but  did  not  stand  on  the  seat,  that  is  not  my  habit — I  walked  to 
the  front  of  the  pew,  and  into  the  aisle,  within  a  few  steps  of  where 
Dr.  Beman  stood.  When  Dr.  Beman  declared  me  elected  mode- 
rator, he  turned  towards  me,  and  told  me  that  I  should  be  governed 
by  the  rules  which  the  Assembly  should  adopt.  I  took  the  station 
which  he  left,  said  that  the  next  business  was  the  choice  of  clerks, 
and  called  for  nominations.  Dr.  Mason  and  Mr.  Gilbert  were  no- 
minated and  none  others.  I  put  the  question,  in  a  distinct  and  loud 
voice,  and  it  was  carried  by  a  large  majority.  1  said,  "  All  those 
who  are  in  favour  will  say,  aye;"  and  afterward,  "Those  opposed 
will  say,  no."  I  used  very  few  words.  After  the  clerks  had  been 
appointed,  a  motion  was  made  to  adjourn  to  the  First  Presbyterian 
church.  This  was  seconded,  and  put,  so  that  it  could  be  heard  all 
over  the  house,  and  it  was  carried.  1  then  announced,  that  if  any 
persons  had  not  presented  their  commissions  they  should  present 
them  at  the  First  Presbyterian  church.  We  went  to  the  First 
Church,  and  conducted  our  business  as  usual. 

I  sat  looking  toward  the  south-western  portion  of  the  church, 
and  heard  all  that  passed.  I  have  detailed  the  facts  as  correctly  as 
possible.  By  a  majority,  I  mean  what  is  usually  called  so,  in  our 
ecclesiastical  judicatories.  There,  when  a  question  is  voted  upon 
viva  voce,  if  there  are  one  hundred  ayes,  and  but  ten  noes,  the 


133 

motion  is  said  to  be  carried  by  a  large  majority.  It  is  not  known 
whether  all  vote.  If  the  roll  is  called,  account  is  taken  of  the  vote 
of  each  person  present.  On  Dr.  Beman's  nomination,  there  seemed 
to  be  about  ten  or  twelve  noes:  they  appeared  to  come  from  the 
quarter  where  the  brethren — I  don't  like  to  call  them  the  Old 
School — sat.  My  position  was  on  the  boundary  line  between  the 
two  ranges  of  pews,  and  I  was  looking  toward  the  south-west  part 
of  the  house.  There  was  one  negative  on  my  left  hand,  comino' 
from  a  pew  occupied  by  our  brethren  of  the  Old  School.  The 
others  came  from  the  quarter  which  has  been  so  often  mentioned. 
The  resolutions  could  have  been  heard  by  any  body  disposed  to 
hear.  The  most  dense  portion  of  the  Old  School  sat  in  the  south- 
west corner  of  the  house.  The  moderator  was  south  of  the  great 
body  of  those  gentlemen,  though  some  were  partially  behind  him. 
I  have  been  a  minister  of  the  Presbyterian  Church  thirty  years  this 
spring,  and  have  attended  the  General  Assembly  about  once  every 
three  years,  making  in  all  eleven  or  twelve  times.  I  am  conver- 
sant with  the  rules  of  the  Assembly.  Where  but  one  person  is 
nominated  to  any  office,  the  question  is  taken  viva  voce.  Where 
more  than  one,  the  roll  is  invariably  called.  I  have  never  known, 
in  any  Assembly,  a  refusal  to  put  an  appeal.  I  should  have  sup- 
posed that  no  moderator  would  have  assumed  such  a  power  to 
himself. 

Cross-examination. — Interrogated  by  Mr.  Preston,  the  witness 
said:  I  had  never  previously  been  moderator.  I  don't  recollect 
that  I  saw  Dr.  Witherspoon  present.  I  did  at  \he  time  see  Dr. 
Phillips.  Dr.  Beman  had  been  moderator.  I  cannot  state  in  what 
year — probably  about  1831.  Dr.  Witherspoon  afterwards  appear- 
ed on  the  roll  as  a  member  of  the  Assembly.  My  nomination  was 
seconded.  A  call  was  made  for  other  nominations,  but  there  was 
no  reply,  in  my  hearing.  Dr.  Beman  announced  my  election,  and 
stated  to  me  that  I  was  to  be  governed  by  the  rules  which  the  Ge- 
neral Assembly  should  adopt.  He  stood  with  his  face  directed  to- 
ward the  south-east  corner  of  the  house,  it  being  turned  parti}-  to- 
wards the  old  moderator,  and  partly  towards  me.  He  sat  in  the 
pew  next  behind  me.  He-  walked  north  two  or  three  slips — (as  the 
oblong  pews  are  called  at  the  east,  to  distinguish  them  from  the 
square  ones.)  When  he  announced  my  election  his  face  was  to- 
wards me.  When  he  called  for  nominations,  he  addressed  the 
preliminary  meeting,  to  which  he  stood  in  a  quartering  direction. 
The  mass  of  the  New  School  brethren  were  north  of  me,  on  both 
sides  of  the  aisle.  Dr.  Beman  sat  near  the  front  of  the  New  School 
brethren,  and  not  in  their  centre.  The  largest  portion  of  those  of 
the  Old  School  was  in  the  south-west  corner.  The  densest  mass 
of  the  New  School  were  collected  in  my  rear.  When  Dr.  Beman 
announced  that  I  was  chosen  moderator,  I  walked  towards  him, 
with  my  back  to  Dr.  Elliott.  When  I  had  taken  my  station,  I  did 
not  address  the  moderator,  but  the  meeting.  I  stood  quartering 
towards  Dr.  Elliott,  my  arm  resting  on  the  west  side  of  the  pew, 
as  1  am  a  little  lame.  By  turning  a  little,  I  could  see  the  great 
mass  of  both  the  New  and  Old  School  brethren.     I  was  at  thcTeast 

12 


134 

end  of  the  pew  in  which  I  sat,  and  Mr.  Cleaveland  was  in  the  pew 
behind  me.  There  were  some  persons  east  of  him  in  the  slip. 
When  he  made  his  suggestion  or  statement,  his  face  was  turned 
towards  the  moderator,  but  he  did  not  address  the  moderator.  He 
first  made  a  preamble,  which  was  followed  by  his  motion.  He  put 
the  motion  to  the  Assembly.  It  is  usual  for  a  moderator  to  take 
his  seat  near  the  pulpit.  [Being  asked  by  Mr.  Preslon,  why  he  did 
not  take  the  usual  place  for  the  moderator  after  his  election  was 
announced,  the  witness  replied  :]  A  paper  was  put  into  my  hands, 
signed  by  the  president  of  the  trustees  of  the  church,  giving 
permission  for  the  house  to  be  occupied  by  an  Assembly  to  be 
organized  under  the  moderator  and  clerks  of  1837,  but  by  no  other. 
No  disturbance  was  wished,  and  I  did  not  know  but  an  attempt  to 
take  the  chair,  might  create  one.  I  did  not  know  but  the  trustees 
had  placed  men  there,  to  prevent  my  taking  it.  It  is  usual  to  take 
that  seat  in  organizing  the  Assembly,  but  I  don't  know  but  it  would 
have  produced  a  greater  violation  of  order  to  attempt  to  take  it, 
than  to  omit  it.  It  is  unusual  to  organize  the  Assembly  stand- 
ing in  the  aisle,  but  not  altogether  without  precedent,  /thought  it 
imprudent  and  unbecoming  to  attempt  to  take  the  chair  under  the 
circumstances.  The  resolution  did  not,  that  I  know  of,  refer  to 
that  chair  in  particular,  more  than  to  any  other  part  of  the  house. 
It  was  from  motives  of  prudence  that  I  did  not  take  it.  I  took  the 
station  that,  I  did,  in  order  that  there  might  be  no  interruption  in 
organizing  the  Assembly.  It  could  thus  be  done  more  speedily, 
and  with  less  disturbance.  My  reasons  were  prudential  ones.  I 
thought  it  very  possible  that  Dr.  Elliott,  although  he  is  a  very  po- 
lite man,  would  not  resign  the  chair. 

Something  was  going  on  in  the  other  part  of  the  church,  during 
these  proceedings.  It  was  a  great  deal  of  noise  and  confusion. 
When  Dr.  Patton  offered  his  resolution  there  was  considerable 
noise.  This  was  partly  behind  the  moderator,  and  around  him. 
While  Mr.  Cleaveland  had  the  floor,  a  part  of  the  time  there  was 
a  great  noise.  Some  one  said  to  the  moderator,  "Why  don't  you 
put  him  down  ?"  and  there  was  coughing  and  scraping.  After'the 
motion  to  appoint  Dr.  Beman  moderator,  there  was  apparently  a 
calm.  The  brethren  of  the  Old  School  looked  on  in  a  kind  of  silent 
amazement.  There  was  no  further  out-breaking  of  noise,  until 
notice  of  the  adjournment  and  the  announcement  to  commissioners, 
who  had  not  yet  presented  their  commissions,  had  been  made  : 
then  there  was  a  great  shout,  and  clapping  and  hissing  from  the 
gallery,  which  I  had  not  anticipated,  and  which  I  regretted  at  the 
time,  considering  it  unsuited  to  the  time  and  place.  We  did  not 
obey  the  cries  of  order  ;  we  acted  on  the  principle  that  we  had 
superseded  the  moderator  and  clerks,  and  were  going  on  under 
another  organization.  There  were  calls  of  order  from  members 
of  the  body,  but  we  did  not  obey  those.  We  paid  no  attention  to 
cries  of  order,  before  the  Assembly  was  fully  organized.  The 
number  of  members  whose  names  were  upon  our  roll,  before  we 
left  Philadelphia,  was  about  two  hundred  and  eighty.  I  did  not  say 
the  New  School  roll,  but  the  roll  of  the  Assembly.     Most  of  them 


135 

were  present  at  the  first  meeting,  but  we  received  some  afterwards, 
more  than  one  hundred,  I  should  think,  voted  on  the  question  of 
adjournment.  The  voting  on  the  different  questions  was  louder 
than  was  necessary  or  proper,  but  there  was  no  other  disturbance 
in  our  part  of  the  house.  When  these  proceedings  began,  most  of 
the  members  were  sitting,  but  after  I  stepped  into  the  aisle,  some 
rose  from  their  seats.  I  noticed  on  the  west  side,  some  who  had 
got  up  on  the  seats.  I  cannot  say  that  the  most  were  on  their  feet. 
I  cannot  tell  what  length  of  time  elapsed  from  Dr.  Beman's  taking 
his  stand  in  the  aisle,  until  the  adjournment,  but  I  suppose  there 
was  time  enough  to  put  all  the  motions :  I  should  think  not  less 
than  ten  minutes.  The  proceedings  were  carried  on  with  consi- 
derable rapidity — as  fast  as  they  could  be  distinctly  attended  to. 
Our  object  was  to  get  through  as  speedily  as  we  could  with  pro- 
priety. The  design  of  all,  I  presume,  was  to  make  the  time  as 
short  as  was  consistent  with  the  orderly  attainment  of  our  object. 
"When  we  went  out,  1  presume  we  left  the  body  that  had  sat  before 
me,  with  Dr.  Elliott  and  Mr.  Krebs,  in  their  places,  but  I  did  not 
look  back.  I  don't  know  hovi^  many  went  with  us  into  the  First 
Presbyterian  church.  Some  time  afterwards  we  had  about  one 
hundred  and  thirty — perhaps  a  few  more  or  a  few  less :  I  am  not 
positive. 

Mr.  Preston  asked  the  witness.  Was  your  election  entirely  unex- 
pected to  yourself? — but  the  question  was  ruled  out. 

Mr.  Preston.  I  wish  to  ask  an  explanation  of  Dr.  Fisher  as  to 
the  paper  of  Mr.  Cleaveland,  of  which  he  has  spoken.  Mr.  Cleave- 
land  said,  that  "  we  had  been  advised  by  counsel  learned  in  the 
law."     Who  did  he  mean  by  "  we"? 

The  question  was  objected  to,  but  the  Court  admitted  it,  and  the 
witness  proceeded : — A  number  of  gentlemen  felt  themselves  ag- 
grieved by  the  acts  of  the  Assembly  of  1837,  I  among  the  rest.  I 
consulted  a  lawyer,  and  so  did  others,  to  find  how  we  might  get 
our  rights.  And  I  and  others  w^ere  informed  by  lawyers,  that  our 
Assembly  must  be  organized  at  that  time  and  place.  We  went  in- 
dividually to  different  lawyers,  in  difierent  parts  of  the  country,  as 
I  in  my  own  neighbourhood,  others  in  New  York,  and  others  in 
Philadelphia,  and  were  individually  advised.  I  don't  know  that 
there  was  any  concert  in  the  matter.  Those  aggrieved  sought  how 
they  might  recover  their  rights.  I  had  been  admitted  to  a  seat, 
but  I  felt  that  when  an  old  brother,  such  as  Dr.  Richards,  Presi- 
dent of  the  Seminary  of  Auburn,  was  excluded,  I  was  aggrieved. 
When  any  one  member  suffered,  I  suffered. 

Re-examined  by  Mr.  Randall,  the  witness  said :  There  was,  at 
all  limes,  a  constitutional  quorum  present  in  our  Assembly.  Nine- 
teen, I  believe,  is  the  number  required  to  form  a  quorum  :  or  four- 
teen perhaps  it  is.  I  was  thinking  at  the  moment  that  it  had  been 
changed  to  nineteen. 

Cross-examination  resumed  by  Mr.  Preston.  The  witness  said  : 
We  called  the  roll  every  morning — the  whole  roll,  including  the 
names  of  the  gentlemen  who  remained  in  the  church  in  Ranstead 
court.     I  cannot  tell  how  many  ever  answered.     No  investigation 


136 

on  this  subject  ;was  made  in  the  Assembly.  I  stated  this  morning 
that  nineteen  were  a  quorum  ;  but  I  find  that  the  rule  requires  only 
fourteen  or  more,  one-half  thereof  being  ministers.  This  rule  is 
applicable  to  the  organization  of  the  x'^ssembly,  but  no  greater 
number  is  ever  indispensable,  so  far  as  I  know.  I  don't  know,  ex- 
cept from  the  constitution,  what  number  is  required  for  a  quorum  ; 
but  from  the  constitution,  I  should  say  that  with  fourteen  we  could 
always  transact  business.  I  have  known  synods  and  presbyteries 
to  carry  on  their  business  without  a  majority  being  present.  I  can 
say,  with  a  good  degree  of  confidence,  that  some  of  the  last  acts 
of  the  Assembly  of  1835,  were  performed  without  a  majority  be- 
ing present,  of  those  who  had  been  on  the  floor.  The  roll  is  called 
every  morning  unless  this  is  dispensed  with.  At  the  dissolution  of 
the  Assembly  I  believe  it  was  not  called.  I  think  at  many  of  the 
Assemblies  where  I  have  been,  the  roll  has  not  been  called  at  the 
close,  or  the  absentees  marked.  It  is  a  general  practice,  but  there 
have  been  many  exceptions  to  it.  I  was  ordained  by  the  West 
Consociation  of  Fairfield  county,  Connecticut,  and  there  I  remain- 
ed for  four  years.  I  received  a  call  to  preach  to  the  Presbyterian 
congregation  at  Morristown,  thirty  years  ago  this  spring,  and  had 
the  usual  constitutional  questions  put  to  me,  which  I  answered. 
My  ordination  in  Connecticut  was  by  a  consociation  composed  of 
clerical  and  lay-delegates.  The  General  Associations  of  Massa- 
chusetts, Connecticut,  and  New  Hampshire,  still  continue  to  exist. 

Direct  exatjiinatlon  resumed  by  Mr.  Randall.  The  witness  said : 
It  is  usual  for  clergymen  to  join  the  Presbyterian  church  in  the 
same  way  that  I  did.  I  could  mention  a  number  of  such  instances, 
where  they  have  come  from  bodies  in  correspondence  with  the 
General  Assembly.  Dr.  Cuyler  and  Dr.  Junkin  were  received  in 
this  manner.  It  is  not  customary  to  re-ordain  in  any  case,  but 
they  go  through  a  formula  of  examination,  if  they  do  not  come 
from  bodies  in  correspondence  with  the  Assembly.  Ordination  in 
our  church  is  the  setting  apart  to  the  gospel  ministry,  by  prayer 
and  the  laying  on  of  the  hands  of  the  presbytery.  If  a  person 
thus  ordained  has  no  charge,  he  is  styled  an  evangelist.  When  a 
person  not  ordained  is  called  to  a  congregation,  he  is  first  ordain- 
ed, and  then  pronounced  to  be  installed.  When  he  has  already 
been  ordained,  the  ceremony  of  installation  is  performed,  and  the 
questions  are  put,  but  there  is  no  laying  on  of  hands,  and  no  re- 
ordination.  I  do  not  know  whether  Dr.  Janeway  was  in  the  Dutch 
church  before  he  entered  the  Presbyterian.  I  joined  the  latter 
church  in  1809,  and  he  was  then  a  member.  He  was  pastor  of  a 
church  in  Philadelphia,  and  I  think  clerk  of  the  General  Assembly. 
Ordained  clergymen,  on  joining  the  Presbyterian  church,  are  never 
re-ordained,  though  they  are  sometimes  examined. 

Rev.  Robert  Adair,  called  by  plaintiffs,  interrogated  by  Mr.  Ran- 
dall, said:  I  am  a  minister  of  the  Presbyterian  church,  and  pastor 
of  a  church  in  Fourth  street,  between  Arch  and  Market;  we  are 
worshipping  temporarily  in  the  Academy.  I  attended  the  Assem- 
bly of  1838;  went  to  the  place,  the  Seventh  Presbyterian  church, 
or  the  Tabernacle,  not  very  long  before  the  meeting.     The  house 


137 

was  full;  it  was  crowded  ;  but  I  succeeded  in  getting  a  seat  about 
midway  of  the  church,  on  the  west  side  of  the  middle  aisle.  At 
the  close  of  the  religious  exercises,  the  moderator  announced,  that 
immediately  after  the  benediction,  he  would  constitute  the  Assem- 
bly, and  accordingly  he  came  down  and  constituted  it  with  prayer. 
After  it  was  thus  constituted,  Dr.  Patton  of  New  York  rose, 
and  intimated  that  he  had  some  resolutions  which  he  wished  to 
offer.  I  don't  know  precisely  what  he  said.  The  moderator  told 
him  he  was  out  of  order,  as  the  first  business  was  the  report  of  the 
clerks  upon  the  roll.  Dr.  Patton  said,  that  his  object  was  to  com- 
plete the  roll.  The  moderator  replied,  that  the  clerks  were  on  the 
floor.  After  this  there  was  more  conversation  between  them,  and 
Dr.  Patton  appealed  to  the  house.  The  moderator  declared  the 
appeal  out  of  order,  and  Dr.  Patton  took  his  seat.  The  clerks  then 
proceeded  with  the  roll.  After  they  had  ended,  Dr.  Mason  rose, 
with  a  bundle  of  papers  in  his  hand,  and  said  something  to  the 
moderator  in  regard  to  what  they  were.  I  don't  recollect  what  he 
said,  but  that  he  had  a  bundle  of  papers  of  which  he  made  a  ten- 
der. After  some  questions  had  been  asked,  to  which  he  responded, 
the  moderator  pronounced  him  out  of  order.  Dr.  Mason  said, 
that,  with  great  deference  to  the  chair,  he  must  appeal  from  that 
decision.  The  moderator  told  him  his  appeal  was  out  of  order, 
and  he  took  his  seat.  Dr.  Elliott  then  announced,  that  if  there 
were  any  commissioners  who  had  not  presented  their  commissions, 
that  was  the  proper  time  to  present  them.  Mr.  Squier  then  rose, 
and  intimated  that  he  had  handed  his  commission  to  the  clerks,  and 
they  had  refused  it ;  and  he  now  claimed  a  seat.  A  conference 
took  place  between  him  and  the  moderator,  after  which  the  latter 
said  to  him,  "  We  do  not  know  you,  sir,"  and  Mr.  Squier  took  his 
seat.  Mr.  Cleaveland  then  rose,  and  after  some  remarks,  the  pur- 
port of  which  I  don't  know,  made  allusion  to  the  importance  of 
securing  a  constitutional  organization,  at  that  time  and  place.  He 
then  moved  that  Dr.  Beman  should  be  temporary  moderator,  and 
this  motion  was  put  and  carried.  Dr.  Beman  came  out  of  the  pew 
into  the  middle  aisle,  and  said  that  the  next,  or  the  first  business 
was  the  nomination  of  clerks.  A  nomination  was  made  of  Dr. 
Mason  and  Mr.  Gilbert;  the  question  was  put,  and  was  carried. 
Afterwards  the  choice  of  a  moderator  was  announced  as  the  next 
business,  and  nominations  were  called  for.  Dr.  Fisher  was  nomi- 
nated, and  the  question  was  put  and  carried.  So  as  to  the  ap- 
pointment of  regular  clerks.  Dr.  Mason  and  Mr.  Gilbert  were 
nominated,  and  the  question  was  put  and  carried.  After  this, 
a  motion  was  made  to  adjourn,  and  this  also  was  carried.  Dr. 
Fisher  then  announced,  that  the  Assembly  would  now  proceed 
to  the  First  Presbyterian  church,  and  that  if  there  were  any 
commissioners  who  had  not  presented  their  commissions,  they 
should  avail  themselves  of  that  opportunity  to  present  them.  I 
can't  say  whether  all  these  questions  were  put  distinctly,  and  in  an 
audible  voice  ;  my  impression  was  that  they  were.  It  appeared  to 
me  at  the  time,  that  they  were  put  in  the  usual  mode  of  presenting 

12* 


138 

questions.     I  have  known  other  moderators  to  put  questions  less 
distinctly  and  audibly  than  these  were  put. 

The  plaintiffs  here  read  from  the  minutes  of  1835,  to  show  the 
practice  of  transacting  business  without  a  majority  of  the  members 
of  the  Assembly  being  present  and  voting;  from  page  16,  showing 
that  on  a  question,  as  to  the  choice  of  a  new  stated  clerk,  there  were 
two  hundred  and  twenty-two  votes,  and  two  persons  present  excused 
from  voting — ayes  98;  nays  124;  and  from  page  32,  showing  that 
on  a  question  relating  to  ruling  eiders,  there  were  ayes  76;  nays  15; 
in  all,  only  91  votes. 

Mr.  Adair  continved :  I  could  not  see  what  number  of  members 
voted.  My  position  was  about  midway  from  the  pulpit,  on  the  west 
side  of  the  middle  aisle.  I  heard  some  negative  voices.  They 
seemed  to  come  from  the  direction  of  the  moderator,  or  from  a 
point  a  little  to  the  south  of  south-east.  I  don^t  know  whether  I 
was  sitting  north  or  south  of  Dr.  Fisher.  I  was  about  opposite  to 
Dr.  Beman,  when  he  came  out  into  the  aisle.  There  were  ladies 
in  the  pew  immediately  in  the  rear  of  me.  I  cannot  say  that  the 
noes  came  from  a  part  of  the  house  distinct  from  that  from  which 
the  ayes  came.  My  impression  was  that  they  came  from  some 
persons  in  the  aisle.  They  seemed  to  come  from  a  point  a  little 
south  of  south-east  from  myself.  I  was  the  second  person  from  the 
door  of  the  pew. 

Cross-examination. — Interrogated  by  Mr.  Ingersoll,  the  witness 
said:  I  came  out  of  the  church  with  the  body  of  my  friends.  They 
came  out  promiscuously,  as  a  congregation  usually  do.  I  do  not 
recollect  whether  I  was  in  the  lead  of  the  column.  I  was  not  a 
member  of  the  Assembly  of  1838.  I  accompanied  to  the  First 
Presbyterian  Church  those  who  removed.  I  cannot  say  how  long 
it  was  from  the  time  that  Dr.  Beman  took  his  station,  till  the  ad- 
journment took  place.  My  interest  in  the  proceedings  was  so  ab- 
sorbing, that  I  could  not  take  note  of  time.  When  the  moderator 
declared  the  appeal  out  of  order,  no  appeal  was  taken  from  his 
decision.     In  our  courts  nothing  of  this  kind  was  ever  heard  of. 

[The  following  colloquy  here  ensued.] 

Mr.  Ingersoll. — How  could  Dr.  Mason  have  manifested  acquies- 
cence in  the  moderator's  decision,  more  clearly  than  by  his  taking 
his  seat? 

Mr.  Adair. — There  was  an  usurpation  of  authority  on  the  part  of 
the  moderator,  that  precluded  any  attempt  to  recover  the  rights  of 
the  members,  without  resorting  to  an  appeal  to  the  house.  The 
rights  secured  by  our  book  had  been  invaded. 

Mr.  Ingersoll. — Suppose  a  member  had  moved  on  some  subject 
not  connected  with  the  business,  as,  for  instance,  "That  you,  Mr. 
Moderator,  should  take  a  drink  of  water;"  the  moderator  decided 
the  motion  out  of  order,  and  an  appeal  from  that  decision  out  of 
order,  what  then  ? 

Mr.  Adair. — The  house  would  treat  such  a  person  as  a  lunatic  ; 
but  here  there  was  a  pertinence  in  the  resolution  offered. 

Mr.  Ingersoll. — O  yes,  that  is  your  opinion,  but  I  differ  from  you. 


139 

though  perhaps  I  do  not  know  so  much  as  you  do  of  the  lex  far- 
lia7nenti. 

Mr.  Adair. — I  have  never  heard  of  such  a  thing,  as  an  appeal 
from  the  judgment  of  the  presiding  officer,  that  an  appeal  was  out 
of  order. 

Interrogated  by  Mr.  Ingersoll,  the  witness  continued :  In  our  move- 
ment from  the  house,  there  was  a  confusion  and  uproar  in  the  gal- 
leries, but  I  do  not  recollect  anything  of  the  kind  on  the  part  of  the 
members  of  the  Assembly.  By  their  conversation,  I  should  judge 
there  was  a  great  deal  of  excitement  among  them,  but  there  was 
nothing  indecorous;  they  only  seemed  excited  and  very  much  in- 
terested. 1  can't  say  whether  any  preparation  appeared  to  have 
been  made  beforehand,  when  I  entered  the  First  Church. 

Interrogated  by  Mr.  Hubbell — There  were  others  besides  mem- 
bers on  the  floor  of  the  church  in  Ranstead  Court,  both  males  and 
females,  as  there  always  are  at  the  opening  of  the  Assembly.  There 
were  spectators  sitting  among  the  members,  as  usual  in  the  morn- 
ing, other  arrangements  not  being  made  until  afternoon.  I  felt  at 
liberty  to  take  any  seat  I  found  unoccupied.  The  house  was  un- 
usually crowded  at  an  early  hour,  but  I  have  seen  it  crowded  com- 
monly on  such  occasions.  The  galleries  were  filled.  I  entered 
first  at  the  north-east  door,  and  then  at  the  door  immediately  north 
of  the  pulpit.  I  had  before  been  up  in  the  gallery,  and  had  taken 
my  stand  by  the  organ.  From  there  I  saw  seats  below  that  were 
more  convenient,  and  avaihng  myself  of  this  information,  I  went 
down  and  took  one  of  them.  I  could  estimate  the  number  of  ne- 
gative voices  only  by  the  sound.  The  negative  was  much  smaller 
than  the  other.  I  sat  one  seat  from  the  aisle.  Mr.  Cleaveland 
was  a  little  east  of  south-east  from  me,  when  he  made  his  motion. 
I  mingled  among  the  members  in  the  First  Presbyterian  Church, 
on  the  outer  part,  among  the  lobby  members  as  they  are  called.  A 
place  for  the  lobby  members  was  not  marked  out  at  that  time:  I 
do  not  know  whether  any  was  designated  afterwards.  1  don't  re- 
collect whether  there  was  any  discussion,  on  our  arrival  in  the 
First  Presbyterian  Church,  in  regard  to  these  proceedings.  I  be- 
lieve the  Assembly  was  constituted  with  prayer,  and  went  on  re- 
gularly to  constitute  the  roll,  and  to  vote  on  Dr.  Patton's  reso- 
lutions. 

Re-examined  by  Mr.  Randall. — I  have  never,  in  an  ecclesiastical 
body,  known  a  case  of  a  moderator's  refusing  to  put  an  appeal. 

[Mr.  Sergeant  then  interrogated  the  witness  and  the  following 
colloquy  ensued.] 

Mr.  Sergeant. — May  not  an  appeal,  under  some  circumstances, 
be  out  of  order  1 

JVitness. — I  think  it  may. 

Mr.  S. — Whose  business  then  is  it  to  declare  an  appeal  out  of 
order  1 

Wit. — I  have  no  experience  in  reference  to  that  matter. 

Mr.  S. — Suppose  an  appeal  is  out  of  order,  does  it  not  belong  to 
the  moderator  to  declare  it  ? 


140 

Wit. — This  would  be  making  ihe  moderator  judge  in  his  own 
case. 

Mr.  S. — But  if  an  appeal  is  out  of  order,  who  is  to  decide  in  the 
first  instance? 

Wit. — The  house  w^ill  decide;  they  will  say  the  appeal  is  out  of 
order;  but  I  have  gone  about  to  the  limits  of  my  knowledge  on 
these  points. 

Mr.  S. — I  want  to  know  whether  it  is  not  the  business  of  the  pre- 
siding officer  to  decide  in  the  first  instance,  that  an  appeal  is  out  of 
order? 

Wit. — No,  Sir;  the  house  must  decide. 

Mr.  S. — Do  you  mean  to  say  that  the  General  Assembly  is  dif- 
ferent from  all  other  deliberative  bodies? 

lY^it. — We  have  certain  rules,  and  I  don't  know  how  they  com- 
pare with  those  of  other  bodies. 

Mr.  S. — Suppose  an  appeal  is  out  of  time;  suppose  that  it  is  not 
made  until  the  next  day  after  it  should  be  made — how  then  ? 

Wit. — The  moderator  must  decide  in  the  first  instance,  and  the 
good  sense  of  the  man  who  makes  the  appeal  will  prevent  any  dif- 
ficulty. 

Mr.  S. — You  mean  to  say,  that  the  moderator  must  decide  in  the 
first  instance,  and  that  the  good  sense  of  the  man  must  afterwards 
help  him  somehow  or  other — do  you? 

Jj^it. — Our  books  make  an  appeal  always  in  order. 

Mr.  S. — Is  there  nothing  said  as  to  the  proper  time  and  place? 

[Mr.  Preston  here  took  up  the  colloquy.] 

Mr.  Preston. — If  a  moderator  decides  an  appeal  out  of  order,  who 
is  to  determine  the  propriety  of  his  decision  ? 

Wit. — The  house  must  decide;  and  in  such  a  case,  if  the  mode- 
rator refused,  the  clerks  ought  to  put  the  question.  The  sole  ques- 
tion that  would  then  come  before  the  house,  would  be  in  regard  to 
the  right  of  appeal. 

Mr.  P. — Suppose  I  made  a  motion,  and  the  moderator  declared 
it  out  of  order,  and  I  then  appealed,  and  my  appeal  also  was  de- 
clared out  of  order,  what  question  w^ould  go  before  the  house. 

IfTft, — I  cannot  answer:  these  matters  are  beyond  my  province. 
Such  a  case  has  never  occurred.  It  would  require  the  opinion  of 
some  of  our  aged  patriarchs. 

Mr.  P. — It  actually  occurred  in  this  instance.  Had  the  gentle- 
man a  right  to  put  any  other  question  to  the  house,  than  that  in  re- 
gard to  the  moderator's  decision  ? 

Wit. — The  question  should  be  either  to  reverse  or  to  confirm  the 
moderator's  decision. 

Mr.  P. — Did  the  question  put  by  Mr.  Cleaveland  either  reverse 
or  confirm  Dr.  Elliott's  decision. 

jj/^il, — The  house  was  not  reached:  it  did  not  get  access  to  that 
appeal.  The  moderator  declared  the  appeal  to  the  house  out  of 
order.  There  was  no  appeal  from  him  on  that  question.  The 
house  did  not  decide  on  the  point  of  order. 

Mr.  Randall  handed  to  the  witness,  and  requested  him  to  read, 
which  he  did;  as  follows: 


141 

No.  29  of  the  "General  Rules  for  Judicatories."  "If  any  mem- 
ber consider  himself  aggrieved  by  a  decision  of  the  moderator,  it 
shall  be  his  privilege  to  appeal  to  the  judicatory ;  and  the  question 
on  such  an  appeal  shall  be  taken  without  debate."  The  witness 
then  proceeded :  I  thought  it  impossible  that  an  appeal  should  be 
declared  out  of  order.  No  time  is  specified  for  an  appeal  from  the 
decision  of  the  chair;  an  appeal  is  always  in  order,  I  know  of  no 
usuage  giving  a  clerk  a  right  to  put  a  question;  I  only  supposed 
such  a  case. 

Interrogated  hy  Mr.  Preston. — These  rules  are  usually  adopted  at 
the  commencement  of  the  session  of  each  Assembly.  I  suppose 
they  were  adopted  in  the  First  Presbyterian  Church,  but  I  am  not 
certain. 

Dr.  Catlicart,  recalled. — After  an  appeal  is  made,  it  is  sometimes 
"withdrawn,  but  if  the  appellant  persist  in  wishing  to  have  it  put,  the 
moderator  is  obliged  to  put  it.  I  never  knew  a  contrary  instance 
till  in  the  Assembly  of  1838.  When  an  appeal  is  put  and  prevails^ 
the  moderator's  decision  is  reversed.  This  was  an  extraordinary 
case.  Neither  the  moderator  or  clerks  had  any  right  to  reject  any 
commissions.  It  was  for  the  house  to  decide  whether  the  commis- 
sions were  valid,  though  it  is  true  that  the  Assembly  of  1837,  at- 
tempted to  bind  the  Assembly  of  1838,  hand  and  foot. 

The  plaintiffs  read  in  evidence  the  following  resolution  from  the 
minutes  of  1837,  p.  498. 

"  Resolved,  That  calling  the  roll  previously  to  dissolving  the  As- 
sembly, be  dispensed  with." 

The  plaintiffs  then  called  Mr.  Archibald  M'Elroy.  Interrogated 
by  Mr.  Randall,  witness  said — I  am  connected  with  the  public  press 
of  this  city:  with  the  United  States  Gazette.  I  was  present  at  the 
organization  of  the  General  Assembly,  in  Ranstead  Court,  on  the 
17th  day  of  May  last.  The  moderator  had  nearly  finished  his  ser- 
mon, when  I  came  tq  the  church.  When  the  moderator.  Dr.  Elliott, 
had  finished  his  sermon,  he  announced,  that  he  would  come  down 
and  proceed  to  organise  the  Assembly;  which  he  did  by  prayer. 
After  the  prayer.  Dr.  Patton  arose,  and  requested  permission  to 
offer  a  paper,  which  he  held  in  his  hand.  The  moderator  told  him 
that  he  was  out  of  order,  as  the  first  business  was  the  report  of  the 
roll.  Dr.  Patton  stated,  that  the  paper  had  reference  to  the  com- 
pleting of  the  roll,  and  appealed  from  the  decision  of  the  moderator. 
The  moderator  pronounced  the  appeal  out  of  order.  Dr.  Patton 
then  look  his  seat.  The  clerk  then  reported  the  roll,  which,  as  I 
afterwards  ascertained,  had  upon  it  upwards  of  200  names.  The 
moderator  then  said,  that  if  there  were  any  commissions  which  had 
not  been  presented  to  the  clerks,  now  is  the  time  to  present.  Dr. 
Mason  rose,  holding  in  his  hand  certain  commissions,  which  he  said 
he  was  anxious  to  offer.  The  moderator  asked  him  where  they 
were  from.  He  replied,  from  the  Synods  of  Utica,  Geneva,  Ge- 
nessee,  and  the  Western  Reserve.  The  moderator  declared  him 
out  of  order.  Dr.  Mason  appealed,  and  the  moderator  decided  that 
the  appeal  was  out  of  order.     Some  conversation  then  passed  be- 


142 

tween  them,  which  I  do  not  recollect.  Mr.  Squier  then  arose,  and 
said,  that  he  had  presented  his  commission  to  the  clerks,  and  it  had 
been  rejected  by  them ;  and  he  now  demanded  his  seat.  The 
moderator  decided  that  he  was  out  of  order.  He  appealed ;  and 
the  same  course  as  before,  was  gone  through.  A  conversation  then 
ensued,  which  I  did  not  understand. 

Mr.  Cleaveland  then  rose,  with  a  paper  in  his  hand ;  which  he 
stated  had  relation  to  the  organization  of  the  Assembly ;  the  sub- 
stance of  which  has  been  given  in  evidence  by  others.  After  he 
had  finished  reading,  he  moved  that  Dr.  Beman  be  appointed  mode- 
rator, until  a  new  one  should  be  chosen  ;  which  motion  was  second- 
ed, and  carried.  Dr.  Beman  took  the  chair,  and  stated  that  the  first 
business  was  the  nomination  of  clerks.  Dr.  Mason  and  Mr.  Gilbert 
were  nominated  and  elected  clerks.  After  this,  he  said  the  next 
business  was  the  election  of  a  moderator.  This  was  gone  through 
with,  also,  in  the  usual  way ;  and  Dr.  Fisher  was  elected  moderator 
of  the  General  Assembly.  After  the  election  of  moderator.  Dr. 
Mason  and  Mr.  Gilbert  were  elected  stated  and  permanent  clerks ; 
and  after  this.  Dr.  Fisher  announced  that  the  General  Assembly  had 
adjourned,  to  meet  in  the  lecture-room  of  the  First  Presbyterian 
church.  During  some  of  these  motions,  there  was  considerable 
noise  and  confusion.  I  was  not  seated  at  all.  I  was  standing  in 
the  eastern  aisle,  about  one  third  of  the  way  up  the  aisle.  I  did 
not  observe  Dr.  Beman's  position  before  he  took  the  chair.  I  was 
to  the  northward  of  him,  after  he  moved  into  the  aisle  and  took 
the  chair,  as  moderator.  I  moved  across  the  aisle,  and  stood  on 
the  seat  of  one  of  the  pews.  I  did  not  see  Dr.  Beman :  a  number 
of  persons  were  between  him  and  me.  I  did  not  see  Dr.  Beman, 
and  others  who  acted  with  him,  come  into  the  church.  I  came 
in  after  the  sermon  had  commenced.  They  were  in  the  house 
before  me. 

I  was  standing  in  the  eastern  aisle,  about  one  third  of  the  way  up, 
when  Mr.  Cleaveland  rose  ;  but,  as  a  number  of  persons  rose  shortly 
after  he  commenced  speaking,  by  which  my  view  was  obstructed, 
I  changed  my  position;  and  afterwards  stood  on  a  seat  in  the  pew. 
I  heard  all  the  motions  put  distinctly.  I  heard  some  of  the  ques- 
tions reversed.  The  best  of  my  recollection  is,  that  they  were  all 
reversed;  but  I  cannot  say  positively  as  to  the  particular  ones.  I 
heard  several  voices  in  the  negative.  A  gentleman  requested  the 
moderator  to  let  them  proceed.  After  that,  there  was  no  noise : 
the  noise  had  subsided  at  the  time  the  motion  was  put. 

Question  by  Mr.  Ingersoll. — In  what  part  of  The  house  was  the 
gentleman  who  requested  the  moderator  to  let  them  proceed? 

Witness. — He  was  in  the  southwest  part  of  the  house. 

Mr.  I. — Did  you  see  that  gentleman  '\ 

Wit. — I  did  not  see  him — but  I  heard  his  voice. 

Mr.  I. — Did  you  know  the  gentleman? 

Wit. — I  knew  his  voice. 

Mr.  I. — Who  was  the  gentleman  ? 

Wit. — It  was  the  Rev.  Robert  Breckinridge,  of  Baltimore. 


149 

Examination  resumed. — When  the  General  Assembly  adjourned 
to  the  First  Presbyterian  Church,  I  think  it  was  about  12  o'clock- 
I  did  not  go  there  with  them.  I  staid  at  the  Seventh  Church,  in 
Ranstead  court,  about  ten  or  twelve  minutes  after  they  left  it.  I 
went  to  the  First  Church  some  time  afterwards.  I  attended 
every  day  during  the  session.  I  cannot  say  certainly  from  which 
part  of  the  house  the  negative  voices  came.  I  heard  the  mo- 
tions made,  and  the  questions  put,  very  distinctly.  Mr.  Cleave- 
land  was  about  half  way  up  the  church,  and  I  six  or  eight  pews 
lower  down:  probably  not  so  many.  I  was  to  the  east  of  him,. 
I  first  stood  in  the  east  aisle;  then  on  the  seat  of  a  pew  on  the 
west  side  of  this  aisle.  Mr.  Cleaveland  was  south-west  of  me,  in 
a  diagonal  direction.  My  position  was  about  the  same  as  re- 
gards the  others.  Mr.  Cleaveland,  I  think,  was  a  little  farther  from 
me  than  Dr.  Patton  or  Dr.  Beman. 

There  was  some  noise  whilst  Mr.  Cleaveland  was  speaking:  but 
the  noise  had  gradually  subsided,  so  that  when  he  put  his  motion, 
there  was  very  little,  if  any  noise.  All  was  still  and  quiet  at  the 
time  Mr.  Cleaveland's  motion  was  put;  and  there  was  but  little 
noise  afterwards,  when  the  other  motions  were  put.  I  heard  all 
the  motions  distinctly.  The  noise  consisted  in  the  moderator's 
calling  to  order,  and  rapping  with  his  hammer,  which  continued 
until  the  gentleman  in  the  other  part  of  the  house  requested  the  mo- 
derator to  let  them  go  on.  It  was  during  the  time  when  Mr.  Cleave- 
land was  reading,  or  shortly  after,  that  this  gentleman  addressed 
the  moderator,  and  said,  in  a  loud  voice,  "Oh,  let  them  go  on." 
The  moderator  then  sat  down.  This  gentleman  was  in  the  south- 
west part  of  the  house.  1  did  not  see  him,  but  knew  his  voice.  It 
was  Mr.  Breckinridge,  of  Baltimore.  This  stopped  the  hammer. 
After  this  interposition,  the  moderator  was  quiet,  and  the  ham- 
mer too. 

Cross-examination.  Interrogated  by  Mr.  HubheU..  I  am  a  mem- 
ber of  the  Franklin  street  church — Mr.  Adair's.  Franklin  street 
is  west  of  Franklin  square.  We  worship  in  the  old  Academy.  I 
came  to  the  Seventh  Church,  near  the  conclusion  of  the  sermon — 
probablj^  about  12  o'clock.  I  remained  perhaps  ten  minutes  at  that 
church,  after  the  others  had  gone,  and  did  not  then  go  to  the  First 
Presbyterian  Church.  I  attended  for  the  purpose  of  taking  notes  of 
the  proceedings.  I  attended  both  places  every  day.  I  did  not  hear 
a  mingling  of  "  ayes,"  and  "  noes"  on  any  of  the  questions.  Some 
of  the  persons  around  me  were  members,  and  some  spectators. 
Those  on  my  left  were  principally  members,  and  those  on  my  right, 
spectators  :  the  most  of  the  latter  were  ladies.  None  of  the  spec- 
tators, that  I  know,  joined  in  the  voting.  I  did  not  vote  on  any  of 
the  questions.  I  think  I  may  safely  say,  that  none  who  voted,  were 
spectators  merely.  I  cannot  say  positively,  that  all  who  voted, 
were  members.  I  saw  a  number  of  persons  among  the  spectators, 
whom  I  knew  ;  but  I  cannot  mention  any  of  their  names  at  present. 
All,  with  very  few  exceptions,  were  seated,  when  I  went  to  the 
church.     After  the  proceedings  commenced,  a  number  of  persons 


144 

rose  in  my  neighbourhood.  I  was  not  seated  at  all.  I  was  stand- 
ing, on  a  seat  part  of  the  time.  I  stood  up  on  the  seat  of  the  pew, 
that  I  might  see  and  hear  what  was  passing  at  the  time.  When  I 
took  my  place  on  the  seat  of  the  pew,  it  was  about  the  time  that 
either  Dr.  Patton  or  Dr.  Mason  was  speaking,  or  shortly  afterwards. 
There  were  some  others  standing  on  the  seat  of  the  pew  I  occu- 
pied. This  was  after  I  had  altered  my  position.  I  altered  my  po- 
sition, that  I  might  see  and  hear  better.  When  Dr.  Beman  took 
the  chair,  he  was  ten  or  fifteen  feet  from  me.  I  did  not  take  especial 
notice.  When  Mr.  Cleaveland  made  the  motion  that  Dr.  Beman 
should  take  the  chair,  I  did  not  see  him.  Several  persons  were 
standing  between  him  and  me,  at  that  time.  I  cannot  state  pre- 
cisely the  distance  Mr.  Cleaveland  was  from  me  when  he  made  his 
motion.  He  was  not  standing  on  a  seat.  I  think  all  the  persons 
between  Mr.  Cleaveland  and  myself,  were  standing  on  their  feet. 
There  may  have  been  twenty  or  fifty,  or  more,  between  us.  I  did 
not  pay  particular  attention.  Some  were  standing  on  the  seats, 
and  some  on  the  floor.  I  do  not  recollect  that  I  took  any  pains  to 
look  at  Mr.  Cleaveland.  1  might  have  been  writing  or  thinking,  at 
that  time,  and  therefore  could  not  see  him.  I  frequently  write  and 
think  at  the  same  time — and  sometimes  talk,  too.  I  was  neither 
writing  nor  talking  at  this  time.  I  got  upon  the  seat  to  see  and  hear 
better;  but  took  no  especial  pains  to  see.  In  order  to  have  seen 
Mr.  Cleaveland,  I  should  have  been  obliged  to  have  gone  nearer  to 
him,  or  to  have  requested  those  who  were  standing  between  us,  to 
sit  down.  I  cannot  say  whether  those  standing  on  the  seats,  were 
members  or  spectators.  Those  immediately  engaged  in  the  organ- 
ization, were  all  standing  on  the  floor  of  the  house. 

Rev.  Amasa  Converse,  called  by  the  plaintiffs,  interrogated  by 
Mr.  Randall,  said:  I  am  from  Virginia — am  a  minister  of  the 
Presbyterian  Church.  1  was  present  at  the  organization  of  the 
General  Assembly  on  the  17th  of  May,  1838.  Previous  to  the 
meeting  of  the  Assembly,  and  I  think  on  the  day  of  its  meeting,  I 
went  to  the  church  in  Ranstead  court,  between  the  hours  of  9  and 
10  o'clock  in  the  morning.  When  I  arrived  at  the  church  there 
appeared  to  be  a  recess  of  the  body  convened  there.  Tfae  Rev. 
Dr.  M'Pheeters  occupied  the  place  of  moderator  or  chairman,  and 
in  the  course  of  a  few  minutes  called  the  meeting  to  order,  and 
gave  notice  to  those  not  members  of  it,  that  the  convention  would 
sit  with  closed  doors,  and  requested  them  to  leave  the  house.  I  then 
left  the  house.  I  returned  before  the  sermon  was  preached,  and 
found  the  house  densely  occupied.  I  then  went  into  the  gallery, 
but  found  that  also  densely  filled  with  ladies  and  gentlemen.  I  re- 
turned to  the  lower  part  of  the  church,  and  found  a  seat  under  the 
gallery  north  of  the  door.  After  the  sermon,  Dr.  Elliott  announced 
that  he  would  proceed  to  organize  the  Assembly,  and  came  down 
to  the  front  of  the  pulpit,  and  made  a  prayer.  Dr.  Patton  then  rose 
and  proposed  to  offer  certain  resolutions.  The  moderator  declared 
him  out  of  order;  then  some  conversation  ensued,  which  I  did  not 
hear  because  of  the  noise  around  me.     Dr.  Patton,  in  a  respectful 


145 

manner,  appealed  from  this  decision.  The  moderator  declared  the 
appeal  out  of  order,  and  refused  to  receive  it;  and  Dr.  Patton  took 
his  seat.  On  his  being  seated,  the  clerk  read  the  roll,  or  a  part  of 
it;  after  which,  the  moderator  announced  from  the  chair  that  if 
any  commissioner  had  not  been  enrolled,  that  was  the  proper  time 
to  present  his  commission.  Dr.  Mason  then  rose  with  some  papers 
in  his  hand,  saying  that  he  held  certain  commissions,  and  moved 
that  the  roll  should  be  amended,  by  the  addition  of  the  names  from 
them.  There  were  cries  of  order,  I  think  from  about  half  a  dozen 
persons,  when  Dr.  Mason  made  his  motion,  which  the  moderator 
declared  to  be  out  of  order.  Dr.  Mason  said,  "  With  great  respect 
for  the  chair,  I  appeal  to  the  house ;"  but  Dr.  Elliott  declared  the 
appeal  out  of  order,  and  Dr.  Mason  took  his  seat.  Then  the  Rev. 
Mr.  Squier,  rising,  demanded  his  seat  in  the  house.  The  modera- 
tor asked  from  what  presbytery  he  came.  He  answered,  from  the 
Presbytery  of  Geneva.  The  moderator  asked  if  that  presbytery 
belonged  to  the  Synod  of  Geneva;  and  he  replied,  that  it  was 
within  the  bounds  of  that  synod.  The  moderator  said,  "We  do  not 
know  you,  sir."  Mr.  Squier  then  took  his  seat.  Mr.  Cleaveland 
then  rose,  and  after  making  a  few  prefatory  remarks,  in  substance 
that  the  General  Assembly  must  be  constitutionally  organized  at 
that  time  and  place,  moved  that  the  Rev.  Dr.  Beman  take  the 
chair,  until  a  new  moderator  should  be  chosen.  This  motion  was 
put,  and  carried  by  a  large  majority.  Dr.  Beman  took  the  chair 
accordingly.  The  question  was  reversed,  and  there  were  a  good 
many  noes.  Nominations  for  clerks  were  then  called  for,  and  the 
Rev.  Dr.  Mason  and  the  Rev.  Mr.  Gilbert  were  nominated;  the 
question  was  put,  and  they  were  elected.  Then  nominations  for  the 
moderator  of  the  Assembly  of  1838  were  called  for.  Dr.  Fisher 
was  nominated,  the  question  was  put  by  Dr.  Beman,  and  he  was 
elected  by  a  large  majority;  and  according  to  my  recollection, 
there  were  several  noes  when  the  question  was  reversed.  The 
next  nominations  were  for  stated  and  permanent  clerks.  I  do  not 
think  that  I  heard  Dr.  Fisher  put  this  question.  There  was,  at  the 
time,  some  confusion  in  the  part  of  the  house  where  I  stood,  and  I 
was  looking  another  way.  After  this  election,  there  was  a  motion 
made  to  adjourn  to  the  First  Presbyterian  Church.  This  motion 
was  put  and  carried.  I  am  not  confident,  but  think,  that  Dr.  Fisher 
after  the  adjournment,  announced,  that  if  any  commissioners  had 
not  been  enrolled,  they  should  repair  to  the  place  of  adjournment. 
A  scene  of  confusion  then  arose  in  the  galleries,  and  clapping  and 
hissing  from  every  side  of  the  house.  About  one  half  of  those  who 
occupied  the  places  where  the  members  of  the  General  Assembly 
sat,  immediately  left  the  house.  I  next  saw  those  who  retired,  at 
the  church  on  Washington  square. 

Some  misunderstanding  here  arose  between  the  witness  and  the 
examiner,  and  a  colloquy  among  the  counsel  ensued;  after  which 
the  witness  proceeded. 

Cross-examination.  Interrogated  by  Mr.  Hubhell,  the  witness 
said:  I  went  to  the  church  to  hear  the  sermon.     I  went,  at  half 

13 


146 

half  past  nine,  to  meet  some  friends,  the  Rev.  Mr.  Hurd,  of  the 
Synod  of  Mississippi,  and  some  persons  who  were  classmates  of 
mine  in  college,  twenty  years  ago.  I  staid  perhaps  ten  or  fifteen 
minutes  after  the  adjournment  of  the  General  Assembly  to  the  First 
Presbyterian  Church ;  or  I  might  not  have  been  there  more  than 
five  minutes.  I  do  not  know  that  I  heard  Mr.  Breckinridge's  re- 
mark requesting  the  moderator  to  let  them  proceed.  I  heard  some 
one  make  the  remark,  but  I  cannot  say  who  it  was.|  I  did  not 
hear  the  remark  with  sufficient  distinctness  to  repeat  it.  I  was  not 
a  delegate  to  the  Assembly.  I  heard  Mr.  Cleaveland  make  a  state- 
ment, and  it  was  in  substance  that  which  I  have  stated  in  my  nar- 
rative :  I  cannot  repeat  the  very  words.  None  of  the  spectators, 
to  my  knowledge,  participated  in  the  voting.  There  were  very  few 
spectators  among  the  members  under  my  observation.  I  did  alter 
my  position;  several  rose,  and  myself  among  them.  I  do  not  recol- 
lect at  what  part  of  the  business  this  was,  but  I  think  it  was  when 
Mr.  Cleaveland  was  reading.  Some  rose  around  me,  but  I  do  not 
think  there  was  a  general  rising  in  the  part  of  the  house  where  I 
was.  In  the  extreme  north  end  of  the  church,  there  were  some 
standing  up  on  the  seats,  back  of  the  commissioners.  I  saw  among 
these,  no  persons  that  I  recognized  as  commissioners,  but  I  do  not 
undertake  to  say  that  I  recognized  every  commissioner  in  the  house. 
I  don't  know  whether  the  spectators  generally  went  away  with  the 
retiring  body.  Many  went  away,  but  a  good  many  remained  when 
I  left  the  church.  I  did  afterwards  attend,  as  a  spectator,  the  ses- 
sions of  the  body  that  remained.  I  reside,  at  present,  in  this  city. 
I  then  resided  in  Richmond,  Virginia.  I  originally  came  from  New 
Hampshire.  I  belong  to  a  presbytery  in  Virginia,  and  have  no 
ecclesiastical  connexion  with  any  presbytery  here.  I  am  editor  of 
"  The  Religious  Telegraph  and  Observer,"  published  in  this  city.  I 
edited  the  same  paper  in  Virginia.  I  have  commented  and  express- 
ed my  opinion  on  the  excluding  measures,  but  not  on  the  party.  I 
have  both  written  and  spoken  my  opinion  in  regard  to  the  proceed- 
ings which  are  now  the  subject  of  litigation. 

Tuesday,  March  \Wi. 
The  plaintifl^s  called  Mr.  Charles  H.  Dingee.  Interrogated  by 
Mr.  Randall,  the  witness  said:  I  was  a  spectator  at  the  opening  of 
the  General  Assembly  of  1838.  I  went  to  the  church  about  twelve 
o'clock.  I  stood  nearly  the  whole  time  in  the  north  gallery  of  the 
church,  in  front  of  the  organ,  nearly  central  of  the  house  east  and 
west.  When  I  went  there  the  preparatory  religious  services  were 
nearly  ended.  The  General  Assembly  was  constituted  with  prayer, 
as  usual,  after  which  the  Rev.  Dr.  Patton  offered  his  resolutions. 
The  moderator  declared  the  resolutions  to  be  out  of  order,  and 
refused  to  let  them  be  read.  Dr.  Patton  remarked  that  his  resolu- 
tions related  to  the  formation  of  the  roll.  The  moderator  said  they 
were  out  of  order,  and  the  next  business  was  the  report  of  the 
clerks.  Dr.  Patton  appealed  from  the  decision  of  the  chair.  That 
appeal  was  seconded.     The  moderator  said  the  appeal  was  out 


147 

t 
of  order,  and  the  clerk  had  the  floor.  Dr.  Patton  stated  to  the 
moderator  that  he  had  the  floor  before  the  clerk.  The  mode- 
rator directed  the  clerk  to  proceed.  The  roll  was  then  read,  I 
think,  by  Mr.  Krebs.  After  the  roll  was  read.  Dr.  Erskine 
Mason  moved  that  the  names  of  certain  commissioners,  whose 
commissions  he  said  he  held  in  his  hand,  be  added  to  the  roll.  The 
moderator  declared  the  motion  to  be  out  of  order.  Dr.  Mason  ap- 
pealed from  the  decision  of  the  chair,  which  appeal  was  seconded. 
The  moderator  said  the  appeal  was  out  of  order,  and  Dr.  Mason 
sat  down. 

Then  the  moderator  announced  that  if  any  commissioners  to  the 
General  Assembly  were  present  who  had  not  yet  presented  their 
commissions,  then  was  the  time  to  present  them.  The  Rev.  Miles 
P.  Squier  then  rose  and  informed  the  moderator  that  he  had  offered 
his  commission  to  the  clerks,  who  had  refused  it,  and  he  demanded 
that  his  name  be  entered  on  the  roll.  Mr.  Squier  was  asked,  I  think, 
whether  he  belonged  to  the  Presbytery  of  Geneva,  and  whether  that 
presbytery  was  within  the  bounds  of  the  Synod  of  Geneva.  Mr. 
Squier  answered  in  the  affirmative.  The  moderator  then  said  "  We 
do  not  know  you,"  and  Mr.  Squier  took  his  seat. 

Then  Mr.  Cleaveland  rose  and  said,  that  as  the  moderator  and 
clerks  have  refused  to  do  their  duty,  it  becomes  necessary  to  orga- 
nize the  General  Assembly  at  this  time  and  in  this  place.  He  stated 
that  such  advice  had  been  given  by  counsel  learned  in  the  law, 
that  the  constitutional  organization  of  the  General  Assembly  could 
only  be  made  then,  and  in  that  place,  that  he  did  not  wish  to 
make  any  disturbance,  that  therefore,  in  the  fewest  words,  and  in 
the  shortest  time  possible,  they  would  proceed  to  organize  the  Ge- 
neral Assembly.  He  therefore  moved  that  Dr.  Nathan  S.  S.  Beman 
be  moderator  until  another  moderator  should  be  chosen.  When  he 
put  the  question,  a  large  number  answered  Aye.  Dr.  Beman  then 
took  his  station  in  the  aisle  of  the  church.  A  motion  was  then 
made  that  Dr.  Erskine  Mason  and  Mr.  E.  W.  Gilbert,  be  the 
clerks,  which  was  agreed  to.  Mr.  Cleaveland  held  a  paper  in  his 
hand,  but  did  not  read  it.  He  certainly  did  not  read  from  it. 
From  my  position  in  the  gallery  I  looked  over  him,  and  I  am  cer- 
tain that  at  no  time  did  he  appear  to  be  reading  from  the  paper 
which  he  held  in  his  hand. 

The  questions  were  moved  and  taken  both  affirmatively  and 
negatively.  They  were  decided  in  the  affirmative.  There  were  a 
few  votes  in  the  negative.  I  then  left  the  gallery,  and  went  down 
into  the  middle  aisle  of  the  church.  The  question  of  adjournment 
was  put  by  Dr.  Fisher  just  after  I  got  down,  and  was  carried.  I 
have  no  recollection  of  hearing  any  noise  at  the  time  of  Dr.  Be- 
man's  election.  There  was  one  "  aye,"  which  had  a  peculiar  sound, 
and  was  considerably  louder  than  the  rest.  I  heard  the  question 
put  distinctly.  It  was  put  in  an  audible  voice.  I  know  that  it  was 
reversed.  I  should  think  any  person  in  the  house  could  have  heard 
it.  Mr.  Cleaveland,  when  he  made  his  motion,  was  standing  in  a 
pew  on  the  middle  aisle.  I  saw  him  when  he  made  the  motion,  and 
heard  him  distinctly.    He  faced  the  moderator  when  he  commenced 


148 

• 
speaking,  and  then  turned  his  face  in  a  south-west  direction.     He 
had  papers  in  his  hand,  and  1  could  see  when  he  referred  to  them. 

Cross-examination. — Interrogated  by  Mr.  Huhbell,  the  witness 
said:  Very  soon  after  Mr. Cleaveland  addressed  the  moderator,  he 
turned  his  face.  When  he  arose,  he  commenced  speaking  with  his 
face  in  the  direction  of  the  moderator.  He  appeared  to  me  to  ad- 
dress the  house,  through  the  moderator.  I  am  not  positive,  but 
think  that  he  had  got  through  with  the  preamble  before  he  turned 
his  face  from  the  moderator.  I  left  the  gallery  soon  after  the  clerks 
were  chosen;  can't  say  that  it  was  immediately  after.  There  was 
no  other  business  entered  into,  that  I  know  of  I  went  into  the 
body  of  the  house  as  soon  as  I  could  get  there. 

Question. — Was  there  any  obstructions  in  your  way  from  the 
gallery  to  the  body  of  the  house? 

There  were  some  obstructions  in  the  way.  There  were  some 
ladies  going  down  out  of  the  gallery.  I  suppose  it  took  me  two  or 
three  minutes  to  get  in.  The  question  was  put  on  the  motion  for 
adjournment  while  I  was  on  the  floor  of  the  house.  It  passed  while 
I  was  there.  I  think  Dr.  Beman  faced  the  south,  inclining  to  the 
west,  but  I  am  not  positive  about  that.  Dr.  Beman  was  presiding 
when  the  question  of  adjournment  was  taken.  I  was  not  personally 
acquainted  with  Dr.  Beman,  but  I  knew  him,  as  I  had  seen  him 
occasionally.     I  have  heard  him  preach  repeatedly. 

Question  by  Counsel. — You  say  you  heard  Dr.  Beman  put  the 
question? 

Witness. — I  heard  him  distinctly. 

Question. — Did  he  reverse  the  question  on  his  motion  1 

Witness. — I  am  not  positive  that  he  reversed  the  question,  though 
I  think  he  did.  I  was,  at  the  time,  anxious  to  get  out  of  the  house. 
He  put  the  question  in  an  audible  voice,  and  spake  loud  enough  to 
be  heard  distinctly  all  over  the  house.  I  was  not  very  near  to  him  ; 
I  was,  perhaps,  twenty-five  feet  from  him.  I  had  a  very  distinct 
view  of  him  at  the  time.  I  think  the  greater  part  of  Mr.  Cleave- 
land's  preamble  was  before  he  turned  obliquely  to  the  moderator. 
He  said,  that  the  moderator  and  clerks  having  refused  to  do  their 
duty  in  the  organization  of  the  General  Assembly,  it  became  neces- 
sary to  proceed  to  the  constitutional  organization,  which  they  would 
do  in  the  fewest  words  and  shortest  time  possible.  I  know  Mr. 
Cieaveland  when  I  see  him,  very  well.  I  had  known  him  before,  by 
sight.  He  is  a  large  man  ;  he  is  not  very  tall:  I  don't  know  his  age. 
From  his  appearance  I  should  judge  his  age  to  be  about  thirty-five. 
I  am  not  certain  in  what  language  he  reversed  the  question.  He 
spoke  in  a  loud  voice;  he  don't  speak  low  generall3\  As  near  as 
1  i-ecollect,  there  was  but  one  response,  and  that  was  '^  aye."  He 
seemed  somewhat  agitated  when  he  commenced  speaking,  but  did 
not  appear  so  when  he  made  his  motion.  I  did  not  observe  that  the 
paper  shook  very  much.  His  voice,  when  he  commenced,  was 
somewhat  peculiar,  and  I  thought  it  indicated  some  degree  of  agita- 
tion. 

Cross-examination. — Interrogated  by  Mr.  IngersoU,  the  witness 
said:  I  did  not  take  notes  of  the  proceedings  at  the  time.     The 


149 

little  agitation  which  I  noticed  was  at  the  commencement  of  his 
preamble.  It  had  no  relation  to  the  order  of  his  proceeding,  nor 
did  he  appear  to  be  confused.  I  attend  the  Third  Presbyterian 
Church  in  this  city — Mr.  Brainerd's,  formerly  Dr.  Ely's.  There 
was  no  urgency  for  my  getting  out  of  the  Seventh  Church,  except 
that  I  wanted  to  go  to  the  other  church  and  get  a  seat.  I  can't  say 
how  many  were  standing  on  the  seats.  I  did  not  get  to  the  other 
church  before  any  body  else,  but  went  rather  in  advance  of  the  main 
body,  and  obtained  a  seat.  I  think  I  saw  the  sexton  unlock  the  door 
of  the  First  Presbyterian  Church  before  I  got  there.  I  can't  say 
positively  whether  I  spoke  to  him  in  Ranstead  court,  or  whether  I 
saw  him  there.  I  have  no  recollection  that  I  heard  Mr.  Cleaveland 
say  that  he  had  been  agitated. 

Mr.  Randall  said,  that  as  the  witness  had  made  a  small  mistake, 
confounding  the  names  of  certain  persons,  he  would  point  out  the 
way  in  which  the  mistake  had  been  unawares  committed,  that  it 
may  be  now  corrected. 

Objection  was  made  by  Mr.  Ingersoll — but  Mr.  Randall  persisted. 
Mr.  Randall  repeated  the  question :  "  When  you  stated  that  Dr. 
Beman  put  the  question  for  adjournment,  did  you  mean  Dr.  Beman 
or  Dr.  Fisher?  Now  recollect." 

Witness. — Certainly  I  said  Dr.  Fisher,  or  meant  to  have  said  so. 
If  I  said  otherwise,  it  was  a  mistake.  I  recollect  distinctly  that  it 
was  Dr.  Fisher. 

Mr.  Randall. — It  was  Dr.  Fisher,  then,  and  not  Dr.  Beman  who 
put  the  question  of  adjournment  ? 

fVitness. — Yes,  certainly.  I  thought  I  had  before  so  stated.  On 
my  way  down  from  the  gallery  I  heard  the  name  of  Dr.  Fisher 
mentioned.  There  were  some  ladies  coming  down  the  stairs  at 
the  same  time  I  was.  I  did  not  hear  Dr.  Fisher  nominated  as  mo- 
derator, nor  any  thing  but  his  name.  I  did  not  distinctly  hear 
whom  the  announcement  came  from,  but  I  think  it  was  Dr.  Beman 
mentioned  his  name.  The  landing  of  the  stairs,  in  the  gallery,  is  in 
the  house,  the  foot  of  them  in  the  lobby.  I  think  no  person  "in  the 
lobby  voted.  I  do  know  Dr.  Fisher ;  when  I  came  into  the  body  of 
the  church  he  was  standing  in  the  middle  aisle,  a  Uttie  more  than 
half  way  down  from  the  pulpit.  Dr.  Beman,  while  he  acted  as 
moderator,  stood  near  the  same  place  which  Dr.  Fisher  afterwards 
occupied.  My  recollection  is  a  little  indistinct  in  regard  to  their 
position,  but  I  think  that  it  was  as  I  have  stated.  I  cannot  say  posi- 
tively when  I  first  heard  that  Dr.  Fisher  was  elected  moderator, 
but  it  was  after  I  came  down  from  the  gallery.  I  supposed  that  Dr. 
Fisher  was  moderator  from  the  fact  of  the  position  he  occupied,  and 
his  putting  the  question  of  adjournment.  I  did  not  merely  infer  it 
from  circumstances.  I  supposed  so  from  the  facts  I  have  mentioned. 
I  was  told  that  Dr.  Fisher  was  elected  moderator  after  I  left  the 
Seventh  Church.  I  did  not  at  first  state  that  Dr.  Fisher  was  ap- 
pointed moderator;  at  any  rate  I  did  not  intend  to  make  such  a 
statement.  I  wish  to  testify  to  the  truth,  and  to  state  nothing  but 
the  truth.  If  I  have  made  any  mistakes  they  were  unintentional, 
and  arose  from  the  manner  in  which  the  questions  were  propounded 

13* 


150 

to  me  by  the  counsel.  1  had  no  expectation  of  being  called  to 
testify  on  these  subjects:  and  it  is  a  good  while  since  the  occurrences, 
and  I  may  have  forgotten  some  particulars. 

Dr.  Fisher  recalled;  interrogated  by  Mr.  Randall,  said:  For 
thirty  years,  during  which  1  have  been  acquainted  with  the  pro- 
ceedings of  our  Presbyterian  judicatories,  it  has  been  the  uniform 
practice,  which  1  have  never  known  departed  from,  that  when  a 
motion  has  been  made,  the  moderator  is  the  judge,  in  the  first 
instance,  whether  it  is  in  order.  In  that  case,  the  moderator  puts 
the  question  to  the  house.  If  the  moderator  think  the  motion  , out 
of  order,  it  is  proper  that  he  should  so  decide.  The  member 
making  the  motion  may  then  appeal  from  the  judgment  of  the 
moderator  to  the  house.  As  to  his  right  to  appeal  there  can  be  no 
question,  and  it  is  the  imperative  duly  of  the  moderator  to  put  the 
appeal  to  the  house.  In  our  ecclesiastical  courts,  from  the  highest 
to  the  lowest,  so  far  as  I  know,  there  has  been  no  other  mode  of 
proceeding.  There  would  be  an  end  to  all  order  if  this  rule  were 
not  observed.  The  moderator  can  never  be  the  final  judge  of  his 
own  decision.  If  he  persist  in  refusing  to  put  an  appeal,  he  vir- 
tually abandons  his  office. 

The  witness  was  here  interrupted  by  Mr.  Preston,  who  objected 
to  his  giving  his  opinion  in  relation  to  the  matter,  and  said  it  was 
merely  the  argument  of  the  witness. 

In  answer  to  a  question  of  Mr.  Preston,  the  witness  said  :  I  never 
knew  of  an  appeal  upon  an  appeal.  Such  a  thing  would  be  perfectly 
absurd.  I  have  known,  perhaps,  a  thousand  appeals,  but  never  an 
appeal  from  a  decision  that  an  appeal  was  out  of  order. 

Interrogated  by  Mr.  Sergeant. — I  never  knew  of  any  such  thing, 
and  am  satisfied  that  there  never  has  been  any  such  occurrence 
in  the  proceedings  of  the  Presbyterian  Church.  I  do  not  know 
how  two  questions  of  equal  grade  can  come  before  the  house  at 
one  and  the  same  time.  I  heard  some  of  the  questions  that  were 
asked  Mr.  Adair,  and  some  of  them  I  did  not  hear.  I  was  attend- 
ing to  the  conversation  of  a  friend,  during  part  of  the  time. 

The  plaintifl:s  then  read  in  evidence,  from  the  general  rules  of 
judicatories  appended  to  the  constitution.  Rule  9:  "The  moderator 
may  speak  to  points  of  order,  in  preference  to  other  members, 
risinaj  from  his  seat  for  that  purpose;  and  shall  decide  questions  of 
order,  subject  to  an  appeal  to  the  judicatory  by  any  two  members." 

Also,  from  Jefferson's  Manual,  sec,  9 — Title,  Speaker:  "  A  speaker 
may  be  removed  at  the  will  of  the  house,  and  a  speaker  protemyai^e 
appointed."     2  Grey,  186.     5  Grey,  134. 

Also,  from  the  same  Manual,  sec.  18 — Title,  Order  in  Debate: 
"In  parliament,  all  decisions  of  the  speaker  may  be  controlled  by 
the  house."     3  Grey,  319. 

The  Rev.  Eliakim  Phelps  recalled.  Interrogated  by  Mr.  Randall, 
witness  slated:  I  am  a  minister  of  the  Presbyterian  Church.  I 
iiave  been  a  minister  about  ten  years.  I  have  taken  an  active  part 
in  the  concerns  of  the  Presbyterian  Church  during  the  whole,  or 
nearly  the  whole  of  that  period.  I  was  a  member  of  the  Assembly 
in  1831,  1834,  and  1835,  and  was  present  at  that  of  1836,  a  part 


151 

of  the  session  of  1837,  and  most  of  that  of  1838.  I  am  acquainted 
with  the  locahty,  generally,  of  the  two  parties  in  the  church.  I 
can  state,  in  general  terms,  that  the  presbyteries  of  Pennsylvania 
are  generally  such  as  are  denominated  Old  School.  Those  presby- 
teries composed  of  those  called  New  School  men,  are  more  gene- 
rally situated  in  the  northern  and  western  parts  of  the  church. 
There  are  some,  however,  in  the  south-west,  and  some  in  the  south. 
Taking  a  comparative  view  of  their  contiguity  to  Philadelphia, 
where  the  sessions  of  the  General  Assembly  are  held,  the  Old 
School  party  have  an  advantage  over  the  New. 

Judge  Rogers  inquired.  What  does  the  witness  mean  by  that? 

Witness  answered:  I  mean  that  the  Old  School  men  live  nearer 
to  Philadelphia,  where  the  General  Assembly  meets,  than  the  New 
School  men  do. 

Interrogated  by  Mr.  Sergeant,  the  witness  said:  There  is  an  ex- 
ception in  the  case  of  the  Third  Presbytery  of  Philadelphia,  situ- 
ated in  the  city  and  liberties;  but  the  statement  I  made  is  correct 
as  regards  the  state  of  Pennsylvania,  as  a  whole. 

The  Third  Presbytery  contains  sixteen  churches,  the  other  two 
presbyteries,  taken  together,  I  think  include  ten  or  twelve  churches. 
There  was  a  church  connected  with  them  in  the  southern  part  of 
the  city ;  but  it  is  said  that  the  house  has  been  sold  to  the  Catho- 
lics. 1  do  not  know,  however,  how  that  is.  The  Third  Presbytery 
is  New  School. 

If  the  commissioners  from  the  four  excluded  synods  had  voted  in 
the  General  Assembly  of  1838,  I  think  there  would  have  been  a 
majority  of  the  whole  number  of  commissioners  in  favour  of  Dr. 
Patton's  and  Dr.  Mason's  motion,  and  opposed  to  the  excinding 
acts.  From  a  careful  examination  of  the  roll  of  the  commissioners 
to  that  Assembly,  a  knowledge  of  the  views  of  the  presbyteries 
from  which  they  came,  and  of  the  expressed  opinions  of  individual 
members,  I  have  computed,  that  on  those  questions  the  votes  would 
have  stood  about  one  hundred  and  forty,  and  one  hundred  and 
thirty-six.  Of  course  the  counsel  and  court  understand,  that  I  do 
not  pretend  to  know  the  hearts  of  men  ;  but  I  judge  from  the  known 
views  of  a  portion  of  the  presbyteries,  and  from  the  best  informa- 
tion I  could  collect  in  regard  to  others.  I  cannot  say,  without 
reference  to  data,  how  many  presbyteries  were  unrepresented  in 
the  Assembly  of  1838. 

Objection  was  made  by  counsel  to  some  parts  of  this  testimony, 
and  a  colloquy  ensued  between  Mr.  Randall  and  Mr.  Preston,  which 
resulted  in  nothing:  bearino;  on  the  case. 

The  ivitness  'proceeded:  I  can  say  something  near  how  many 
commissioners  were  absent,  whose  presbyteries  were  reckoned  on 
one  side  or  the  other. 

Question  by  Mr.  Randall. — If  every  presbytery  in  the  United 
States  of  America  had  had  a  full  representation  in  1838,  or  were 
now  fully  represented,  which  party  would  have  the  majority? 

Objection  was  made  to  this  question  by  Mr.  Preston.  He  said 
that  if  the  counsel  were  suffered  to  run  into  this  course  of  investi- 
gation, if  an  inquiry  as  to  the  number  of  the  two  parties  is  to  be 


152 

made,  most  gladly  would  we  enter  into  it,  but  the  inquiry  ap- 
pears to  be  wholly  irrelevant  to  the  issue  of  this  case.  And  the 
question,  moreover,  could  not  be  answered  by  the  witness  of  his  own 
knowledge. 

Mr.  Randall. — I  ask  for  his  judgment  only,  or  opinion,  and  will 
limit  the  inquiry  to  the  Assembly  of  1838. 

Judge  Rogers. — The  inquiry  must  be  confined  to  the  number  of 
those  actually  assembled  in  1838.  Some  other  tribunal  must  decide 
the  other  question. 

Cross-examination. — Interrogated  by  Mr.  Preston,  the  witness 
said:  I  did  not  state  that  the  members  of  the  Old  School  party  had 
superior  facilities  for  getting  to  Philadelphia,  to  those  of  the  New 
School  party;  but  I  stated  that  they  generally  had  the  advantage  in 
point  of  contiguity.  I  did  not  say  they  had  greater  facilities  for 
getting  there.  I  have  no  knowledge  of  the  fact.  I  do  not  know 
enough  about  that  matter  to  form  a  judgment,  to  be  given  under 
oath.  I  am  Secretary  of  the  Philadelphia  Education  Society,  which 
is  a  branch  of  the  American  Education  Society.  The  parent  So- 
ciety is  in  Boston ;  there  is  a  co-ordinate  Society  in  New  York,  one 
in  Philadelphia,  and  another  in  Cincinnati.  I  am  commissioned  by 
the  Philadelphia  Education  Society.  This  is  an  auxiliary  to  the 
Central  American  Education  Society,  which  embraces  all  of  the 
United  States  out  of  New  England,  except  a  portion  of  Michigan, 
and  perhaps  a  part  of  Ohio.  I  cannot  say  that  the  Board  at  Boston 
is  the  chief.  The  Central  American  Board  makes  annual  reports 
and  quarterly  returns  to  it,  but  is  independent  as  to  the  appropriation 
of  funds.  I  was  not  originally  ordained  in  the  Presbyterian  Church. 
I  was  ordained  in  1816,  and  have  been  in  the  Presbyterian  Church 
about  ten  years.  I  formerly  had  a  pastoral  charge  in  Geneva,  in 
the  western  part  of  the  state  of  New  York,  which  is  within  the 
bounds  of  the  excinded  synods.  I  have  not  resided  within  the  bounds 
of  those  synods  since  they  were  excinded.  In  prosecuting  the  du- 
ties of  my  office,  I  am  led  as  far  as  Pittsburg  and  Erie,  and  once  a 
year  have  been  as  far  south  as  Richmond.  The  mails  come  in 
about  four  days,  or  a  shorter  time,  from  Geneva  to  Philadelphia. 
I  am  not  prepared  to  say  what  are  the  comparative  facilities  for 
reaching  Philadelphia  from  the  different  points  named.  In  answer- 
ing the  question,  in  regard  to  the  advantages  of  contiguity  or  dis- 
tance, I  meant  to  include  the  whole  Presbyterian  Church. 

Mr.  Preston. — How  are  the  presbyteries  of  Virginia  divided,  be- 
tween the  Old  and  New  Schools? 

Mr.  Phelps. — There  are  some  presbyteries  of  both  kinds  in  that 
state.  The  Presbytery  of  the  District  of  Columbia,  I  understand,  is 
partly  in  that  state.  I  have  understood,  that  in  the  whole  Synod 
of  Virginia,  the  Old  School  have  a  small  majority. 

Mr.  Preston. — Has  not  the  Old  School  the  majority  in  the  South- 
ern States,  taken  collectively? 

Judge  Rogers. — I  think  these  matters  are  irrelevant;  it  is  neces- 
sary, for  the  sake  of  both  the  court  and  jury,  that  I  should  interpose. 

Mr.  Preston. — The  witness  has  sworn  that  the  Old  School  have 
the  advantage  in  point  of  contiguity.     Now,  in  explanation  of  this, 


153 

I  propose  to  examine  the  witness,  as  to  the  presbyteries  in  the  whole 
tract  of  the  Southern  and  Southwestern  States. 

Mr.  Randall. — We  mean  to  follow  up  the  testimony  offered,  by 
evidence,  to  show  that  the  Old  School  majority  was  merely  acci- 
dental, and  did  not  show  the  numerical  strength  of  the  parties. 

Judge  Rogers. — So  I  understood,  and  that  is  exactly  what  I  wish 
to  prevent.     I  consider  it  irrelevant  to  the  question  at  issue. 

Mr.  Randall  proposed  also  to  offer  evidence  as  to  the  compara- 
tive means  of  intercourse. 

Judge  Rogers. — It  is  no  matter  whether  one  party  of  the  Church  is 
more  or  less  contiguous  than  another. 

The  plaintiffs  now  offered  in  evidence  chapter  10th  of  the  Form 
of  Government  of  the  Presbyterian  Church,  section  7 — also,  the  sta- 
tistical table  annexed  to  the  minutes  of  the  General  Assembly  of 
1837,  page  523;  showing  that  the  Presbytery  of  Newburyport,  be- 
longing to  the  Synod  of  Albany,  had  but  two  Presbyterian  Churches ; 
that  the  other  ministers  of  said  presbytery,  amounting  in  all  to  six- 
teen, were  generally  pastors  of  Congregational  Churches.  Also, 
the  same  minutes,  page  618,  to  show  that  there  were  belonging  to 
the  Presbytery  of  Charleston  Union  twenty-eight  ministers,  and  but 
eight  Presbyterian  Churches ;  while  there  were  eight  Congregational 
and  several  Independent  Churches  receiving  the  labours  of  the  mi- 
nisters of  said  presbytery. 

The  plaintiff's  counsel  further  offered  in  evidence  extracts  from 
the  minutes  of  the  General  Assembly,  to  show  that  at  so  late  a  pe- 
riod as  1835,  only  two  years  before  the  excision  of  the  four  synods, 
the  assembly  had  not  learned  to  regard  any  of  its  synods  or  pres- 
byteries as  sustaining  any  such  relation  to  the  plan  of  union,  as  that 
its  abrogation  would  at  all  affect  their  integrity;  and  that  they  did 
not,  at  that  time,  entertain  the  opinion  that  the  annulling  of  the  plan 
should  in  anywise  interfere  with  the  existence  or  lawful  operations 
even  of  churches  which  had  been  formed  on  that  plan. 

Mr.  Randall  remarked:  The  court  and  jury  will  bear  in  mind 
that  on  page  26  it  is  stated  that  the  whole  of  the  report  was  adopted. 
I  have  read  the  parts  which  are  pertinent  to  this  case. 

1835.    WmuteSyp.lo. 

The  unfinished  business  of  the  morning-  was  resumed,  viz  :  the  consideration  of 
the  Overture  No.  16 ;  which  was  committed  to  Dr.  Miller,  Dr.  Hog-e,  Dr.  Edgar, 
Mr.  D.  Elliott,  Mr.  M'llhenny,  Mr.  Stonestreet,  and  Mr.  Banks. 

Id.  p.  26. 
The  consideration  of  the  report  on  Overture  No.  16  was  resumed.  The  sixth 
general  resolution  being  under  discussion,  the  consideration  of  it  was  postponed  to 
take  up  a  substitute,  wJiicli  being  read  and  discussed,  was  adopted.  The  seventh 
and  eighth  general  resolutions  of  the  report  were  then  adopted.  The  preamble 
was  adopted.  The  question  was  then  taken  on  the  whole  report  as  amended, 
which  was  adopted,  and  is  as  follows: 

The  committee  to  whom  was  referred  the  Memorial  and  Petition  of  a  number  of 
Ministers  and  Ruhng  Elders  of  the  Presbyterian  Church,  and  certain  other  papers 
relating  to  the  same  or  allied  subjects,  beg  leave  to  report; 

That  they  have  endeavoured  to  deliberate  on  the  said  memorial  and  petition,  and 
other  papers  committed  to  them,  with  all  that  respect  which  the  character  of  those 
from  whom  they  come  could  not  fail  to  inspire;  and  with  all  the  calmness,  impar- 


154 

tiality  and  solemnity  which  the  deep  importance  of  the  subjects  on  which  they  have 
addressed  the  Assembly,  so  manifestly  demands.         *         *         * 

The  committee,  therefore,  as  the  i-esult  of  their  deliberations  on  the  documents 
committed  to  them,  would  most  respectfully  recommend  to  the  Assembly  the  adop- 
tion of  the  following  resolutions,  viz:         *         *         * 

6.  Resolved,  That  this  Assembly  deem  it  no  longer  desirable  that  churches  should 
be  formed  in  our  Presbyterian  connexion  agreeably  to  the  plan  adopted  by  the 
Assembly  and  the  General  Association  of  Connecticut  in  1801.  Therefore,  Resolved, 
That  our  brethren  of  the  General  Association  of  Connecticut  be,  and  they  hereby  are 
respectfully  requested  to  consent  that  said  plan  shall  be,  from  and  after  the  next 
meeting  of  that  Association,  declared  to  be  annulled.  And,  Resolved,  That  the 
annulling  of  said  plan  shall  not  in  anywise  interfere  with  the  existence  and  lawful 
operations  of  churches  which  have  been  already  formed  on  this  plan. 

7.  Resolved,  That  this  General  Assembly  see  no  cause  either  to  terminate  or 
modify  the  plan  of  correspondence  with  the  Associations  of  our  Congregational 
brethren  in  New  England.  That  correspondence  has  been  long  established.  It  is 
believed  to  have  been  productive  of  mutual  benefit.  It  is  now  divested  of  the 
voting  power,  which  alone  could  be  considered  as  infringing  on  the  constitution  of 
our  Church,  by  introducing  persons  clothed  with  the  character  of  plenary  members 
of  the  Assembly.  It  stands,  at  present,  substantially  on  the  same  footing  with  the 
visits  of  our  brethren  from  the  Congregational  Union  of  England  and  Wales;  and 
in  the  present  age  of  enlarged  counsel,  and  of  combined  effort,  for  the  conversion 
of  the  world,  ought  by  no  means  to  be  abolished.  Besides,  the  Assembly  are  per- 
suaded, that  amidst  the  unceasing  and  growing  intercourse  between  the  Presbyte- 
rian and  Congregational  Churches,  it  is  desirable  to  have  that  intercourse  regulated 
by  compact,  and  of  course,  that  it  would  be  desirable  to  introduce  terms  of  corres- 
pondence even  if  they  did  not  already  exist.         *         *         » 

Plaintiffs'  counsel  called  the  Rev.  Olwer  Wetmore,  to  show  the 
unjust  practical  operation  of  the  cxcinding  acts,  that  the  persons 
excluded  from  the  church  by  these  acts,  were  so  excluded  merely 
by  reason  of  their  location,  of  the  circumstance  of  their  residence, 
at  the  time  of  the  adoption  of  these  acts,  within  certain  geographi- 
cal limits. 

The  witness,  interrogated  by  Mr.  Randall,  having  testified — I  am 
a  minister  of  the  Presbyterian  Church,  and  have  been  for  about 
thirty  years ;  belong  to  the  Presbytery  of  Oneida,  and  have  here 
some  of  the  records  of  that  presbytery ; 

Mr.  Randall  requested  him  to  look  at  those  records,  and  say  whe- 
ther the  Rev.  Dr.  Carnahan,  now  President  of  Princeton  College, 
was  ordained  by  that  presbytery. 

The  interrogatory  was  objected  to  by  Mr.  Huhhell. 

Mr.  Randall.  We  wish,  in  illustration  of  the  point  proposed  to 
be  established,  to  take  the  case,  merely  as  examples,  like  which 
there  are  a  multitude  of  cases,  of  two  venerable  gentlemen,  ministers 
in  the  Presbyterian  Church.  We  would  show  that  Dr.  Carnahan, 
introduced  into  the  ministry  and  ordained  to  the  sacred  office  by 
the  Presbytery  of  Oneida,  one  of  the  excinded  portions  of  the 
church,  by  the  mere  circumstance  of  his  receiving  a  call  to  a  sta- 
tion without  the  bounds  of  that  presbytery,  and  becoming  President 
of  the  College  at  Princeton,  in  the  Synod  of  New  Jersey,  is  untouch- 
ed by  the  act  of  excision ;  while  Dr.  Richards,  for  many  years  a 
prominent  Presbyterian  minister  in  the  same  Synod  of  New  Jersey, 
by  the  mere  circumstance  of  being  called  to  preside  over  the  semi- 
nary at  Auburn,  within  the  infected  district,  becomes  obnoxious  to 
the  excluding  acts,  and  is  detruded  from  the  church.  In  other 
words,  that  mere  locality,  at  the  time  of  the  excinding  acts,  deter- 


155 

mines  the  Presbyterianism  of  the  ministers  of  this  church,  or  their 
title  to  continue  in  its  pale,  without  any  question  whether  their  ordi- 
nation had  been  regular  and  constitutional  or  otherwise. 

Mr.  Hubhell  said  he  saw  nothing  inconsistent  or  unconstitutional 
in  the  matter.  If  the  excinding  acts  seemed  to  bear  hard  upon  any 
individual,  all  he  had  to  do  was  to  report  himself  to  a  regular  pres- 
bytery, and  he  would  of  course  be  received.  This  must  be  the 
case,  agreeably  to  the  resolution  of  the  General  Assembly  of  1837, 
and  if  any  individual  would  not  comply  with  this  requisition  for 
gaining  readmission  to  the  church,  he  must  remain  out  always. 
The  requisition  was  reasonable,  and  it  is  their  own  obstinacy,  and 
no  act  of  ours,  that  excludes  them  from  the  communion  of  the 
church.  But  we  insist  that  nothing  shall  be  given  in  evidence  ex- 
cept what  is  legitimate  and  relevant  to  the  issue.  It  is  on  this 
ground  principally  that  we  object  to  the  testimony  on  this  point. 

After  a  protracted  colloquy  between  the  counsel  on  the  subject 
of  admitting  this  testimony  the  Court  ruled  that  as  it  was  designed 
merely  to  show  the  practical  results  of  the  excinding  acts ;  these, 
any  farther  than  they  appeared  in  the  documents  given  in  evidence, 
could  more  properly  be  shown  in  argument  on  the  construction  of 
the  acts,  than  by  testimony  as  to  particular  cases. 

The  plaintiffs  then  gave  in  evidence  the  minutes  of  1837,  page 
442,  showing,  said  Mr.  Randall,  that  on  Friday  afternoon,  June  2d, 
the  Rev.  Norris  Bull  was  elected  a  member  of  the  Board  of  Edu- 
cation, to  serve  four  years.  On  the  Monday  following,  the  act  ex- 
cinding the  Synods  of  Utica,  Geneva  and  Genessee  was  passed,  (Id. 
p.  444,)  by  the  operation  of  which  Mr.  Bull  was  excluded  from  the 
church,  as  he  belonged  to  the  Presbytery  of  Rochester,  in  the  Synod 
of  Genessee,  which  appears  from  the  same  minutes,  page  541. 

Mr.  .imhrose  White  was  then  called  on  the  part  of  the  plaintiffs 
to  prove  that  the  relators  duly  applied  for  admission  to  their  seats 
in  the  Board  of  Trustees  and  were  refused. 

Interrogated  by  Mr.  Randall,  the  witness  said:  I  was  a  member 
of  the  Board  of  Trustees  of  the  General  Assembly,  and  attended  a 
meeting  of  the  board  in  the  month  of  June,  shortly  after  the  rising 
of  the  Assembly.  At  that  meeting,  the  relators  in  this  case,  applied 
for  admission  to  seats  in  the  board  as  trustees.  All  the  relators 
applied  while  I  was  present,  except  Mr.  Neff.  They  presented  the 
evidence  of  their  appointment,  and  the  members  present  refused  to 
recognize  them  as  trustees.  A  resolution  to  that  effect  was  passed, 
from  which  I  dissented. 

Cross-examined  by  Mr.  Preston,  the  witness  said:  I  am  considered 
as  belonging  to  the  New  School  party.  I  believe  there  is  no  doubt 
about  my  being  correctly  placed  there.  I  have  been  somewhat 
active  in  these  proceedings. 

The  plaintiffs  now  read  from  the  Form  of  Government,  chap.  3d, 
sect.  2.     (Of  the  officers  of  the  church.) 

The  ordinary  and  perpetual  officers  in  the  church  are  Bishops  or  Pastors  ;  the 
representatives  of  the  people  usually  styled  Ruling'  Elders  and  Deacons. 

Also  chap.  8,  (Of  church  government  and  the  several  kinds  of 
judicatories). 


156 

Sect.  1.  It  is  absolutely  necessary  that  the  government  of  the  church  be  exercised 
under  some  certain  and  definite  form.  And  we  hold  it  to  be  expedient,  and  agree- 
able to  Scripture  and  the  practice  of  the  primitive  Christians,  that  the  church  be  go- 
verned by  Congregational,  Presbyterlal  and  Synodical  Assemblies.  In  full  consis- 
tency with  this  belief  we  embrace  in  the  spirit  of  charity  those  Christians  who 
differ  from  us,  in  opinion  or  practice,  on  these  subjects. 

2.  These  Assemblies  ought  not  to  possess  any  civil  jurisdiction,  nor  to  inflict 
any  civil  penalties.  Their  power  is  wholly  moral  or  spiritual,  and  that  only  ministerial 
and  declarative.  They  possess  the  right  of  requiring  obedience  to  the  laws  of 
Christ ;  and  of  excluding  the  disobedient  and  disorderly  from  tlie  privileges  of  the 
church.  To  give  efficiency,  howevei-,  to  this  necessary  and  scriptural  authority, 
they  possess  the  powers  requisite  for  obtaining  evidence  and  inflicting  censui-e. 
They  can  call  before  them  any  offender  against  the  oi'der  and  government  of  the 
church ;  they  can  require  members  of  their  own  society,  to  appear  and  give  testi- 
mony in  the  cause  ;  but  the  highest  punishment  to  which  their  authority  extends, 
is  to  exclude  the  contumacious  and  impenitent  from  the  congregation  of  believers. 

The  plaintiffs  further  read  in  evidence  from  the  Assembly's  Di- 
gest, pp.  28,  29,  an  extract  from  the  minutes  of  the  General  Assem- 
bly of  1791.     Vol.  i.  p.  42,  as  follows: 

Sect.  2.  No  CouRESPONDixG  Members  can  be  admitted  into  the  Assembly. 
Upon  motion  it  was  agreed.  That,  whereas  this  Assembly,  copying  the  example 
of  their  predecessors,  have  admitted  several  ministers,  who  are  not  commis- 
sioners, to  join  in  their  deliberations  and  conclusions,  but  not  to  vote  on  any 
question  ;  and  although  this  Assembly  has  been  much  indebted  to  the  wise 
counsels  and  friendly  assistance  of  these  corresponding  ministers,  nevertheless,  on 
mature  deliberation,  it  was  resolved  as  the  opinion  of  this  house: 

1.  That  no  delegated  body  has  a  right  to  transfer  its  powers,  or  any  part  thereof, 
unless  express  provision  is  in  its  constitution. 

2.  That  this  Assembly  is  a  delegated  body,  and  no  such  provision  is  in  its  con- 
stitution. 

3.  Although  such  admission  has  hitherto  produced  no  bad  consequences,  it  may, 
nevertheless,  at  some  future  day,  be  applied  to  party  purposes,  and  cause  embar- 
rassment and  delay. — Wherefore,  Resolved, 

4.  And  lastly.  That  the  practice  of  this  Assembly  in  this  case,  ought  not  to  be 
used  as  a  precedent  in  future. 

An  extract  from  the  minutes  of  the  General  Assembly  of  1793 
(vol.  i.  p.  77,)  was  here  read  in  evidence  by  the  plaintiffs  from  the 
Digest,  p.  323. 

Sect,  5.  No  person  to  be  condemned  without  due  notice  of  the  accusation  against 
him. 

It  was  Resolved,  as  the  sense  of  this  house,  that  no  man  or  body  of  men  agreeably 
to  the  constitution  of  this  church,  ouglit  to  be  condemned  or  censured,  without 
having  notice  of  the  accusation  against  him  or  them,  and  notice  given  for  trial. 

The  plaintiffs  then  read  in  evidence  from  the  minutes  of  the  Ge- 
neral Assembly  of  1821  and  that  of  1822  the  proceedings  connected 
with  the  union  of  the  Associate  Reformed  Church  with  the  General 
Assembly  of  the  Presbyterian  Church. 

[See  previous  reference  to  this  subject  on  page  84  of  this  re- 
port.] 

Minutesof\B2\,p.9. 

The  committee  appointed  to  confer  with  a  committee  from  the  Associate  Re- 
formed Synod,  presented  as  their  report  the  following  minutes  of  proceedings, 
viz: 

The  committee  appointed  by  the  General  Assembly  of  the  Presbyterian  Church, 
and  the  committee  appointed  by  the  General  Synod  of  the  Associate  Reformed 
Church,  to  confer  with  respect  to  an  union  of  the  two  bodies,  met  at  the  house  of 
Jonathan  Smith,  Esq.     The  Rev.  Dr.  Green  was  chosen  chairman  of  the  meeting, 


157 

and  the  Rev.  John  Lind,  secretary:  The  business  was  introduced  with  prayer  by 
Dr.  Green. 

On  motion  of  Dr.  Blatchford,  seconded  by  Dr.  Mason,  it  was  resolved,  unani- 
mously, as  the  judgment  of  the  conferring  committees,  that  an  union  of  the  two 
churches  is  both  desirable  and  practicable. 

The  following  articles  were  then  proposed,  and  unanimously  approved  as  the 
basis  of  such  an  union  : 

1.  The  different  presbyteries  of  the  Associate  Reformed  Church  shall  either  re- 
tain their  separate  organization,  or  shall  be  amalgamated  with  those  of  the  General 
Assembly,  at  their  own  choice.  In  the  former  case  they  shall  have  as  full  powers 
and  privileges  as  any  other  Presbytery  in  tlie  united  body,  and  shall  attach  them- 
selves to  the  synods  most  convenient. 

2.  The  Theological  Seminary  at  Princeton,  under  the  care  of  the  General  As- 
sembly, and  the  Theological  Seminary  of  the  Associate  Reformed  Church,  shall  be 
consolidated. 

3.  Whereas  moneys  to  the  amount  of  between  nine  and  ten  thousand  dollars, 
which  were  given  to  the  General  Synod  of  the  Associate  Reformed  Church,  and  of 
which  the  interest  or  product  only  was  to  be  applied  to  the  support  of  a  Theologi- 
cal Seminary,  were  necessarily  used  in  the  current  expenses  thereof;  which  moneys 
so  expended  were  assumed  by  the  synod  as  its  own  debt,  at  an  interest  of  seven 
per  cent. ;  the  united  body  agree  to  make  a  joint  effort  to  repay  the  same,  and  will 
apply  the  interest  accruing  thereon  to  the  maintenance  of  a  Professorship  of  Blbliea 
Literature,  in  the  Seminary  at  Princeton,  analogous  to  that  winch  now  exists  in  tb  '' 
Associate  Reformed  Church,  and  until  such  professorship  sliall  be  established^  tl            ^ 
said  interest  or  product  shall  be  used  for  the  general  purposes  of  the  seminary.              '^ 

4.  The  Theological  Library  and  Funds  belonging  to  the  Associate  Refacir 
Church,  shall  be  transferred,  and  belong  to  the  Seminary  at  Princeton.  '^d 

These  articles  having  been  approved,  were  ordered  to  be  transcribed  and.sig' 
and  a  copy  of  them  transmitted  to  the  General  Assembly  of  the  Presbyt  '^fd> 

Church,  and  the  General  Synod  of  the  Associate  Reformed  Church,  respettiv  ^"au 

The  meeting  was  closed  with  prayer  by  the  Rev.  Ebenezer  Dickey.  ^^V- 

All  which  is  respectfully  submitted. 

Ashbel  Green,  Samuel  Blatchford,  John  M'Dowell,  Henry  Southard.         ^ 
min  Strong,  J.  M.  Mason,  Ebenezer  Dickey,  John  Lind,  William  Benja- 

Joseph  Gushing.  *Vi]son„ 

The  foresroinsr  report  havinsr  been  read,  and  duly  considered,  was  unr 
adopted.  .  .  '"^"wusly 

Ordered,  that  the  committee  of  conference  on  this  subject  wait  oijitb         „ 
the  Associate  Reformed  Church,  and  inform  them  of  the  adoption  oi.  th'      ^    rT '  j      °^ 
union  on  the  part  of  this  General  Assembly.  "        cies  of 


Chui 


Minutes  of  1822,  p.  W. 

The  following  communication  from  the  General  Synod  of  tb.e  Jsss<   jciate  R  r 
[ch,  was  received  and  read,  viz :  eiormed 


Resolved,  That  this  Synod  approve  and  hereby  do  ratify  '  cbe '  pj^n  of  rr  ' 
tween  the  General  Assembly  of  the  Presbvtei-ian  Church  ar  ■  (\  0"ie  Associ       p^r 
ed  Church,  proposed  by  commissioners  from  said  churche  ■  j_  «eiorm- 

Extract  from  the  minutes  of  the  General  Svnod  c,j  •  \hf  Acc^^-„*    ^^   ^ 

Church  of  Philadelphia,  21st  May,  1822.         "         ^^^^ciate  Reformed 

J^  iMEs  Laurie,  Moderator. 
J   .  Arbuckle,  Clerk. 
Resolved,  That  a  copy  of  the  above  resolution,  autb.   anticated  bv  thp       a 
and  the  clerk,  be  immediately  sent  to  the  General  As  semblv  of  the  P  "'?  ^''^^°^ 
Church,  and  that  Rev.  Ebenezer  Dickey  and  Dr.  Rob«i  ft  Patterson  be  a    ^     *^"^" 
to  wait  upon  tlie  Assembly  with  said  resolution.  committee 

J.  Arbuckxe,  Clerk. 
The  committee  from  the  Synod  of  the  Associate  Re  jformed  Church 
the  Assembly,  and  the  resolution  was  read.  Ppeared  in 

Whereupon,  Resolved,  T\\3X  the  Assembly  receive  tJiis  communication  with 
pleasure;  and  the  Rev.  Jonas  Coe,  D.  D.,  the  Rev.  TThomas  M'Aulev  I     r    "  S'^^^t 
Rev.  William  Gray  of  the  Presbytery  of  New  York^  and  Mr.  Divie  Beth  '/''^ 

appointed  a  committee  to  wait  upon  said  synod;  and,  inasmuch  as  ihe^d^tf'^^-^'^ 
presbyteries  under  the  care  of  the  synod,  cannot  appoint  deleo-ates  to  attend  tl"* 


158 

present  General  Assembly,  cordially  to  invite  all  the  delegates  to  the  synod  to  take 
their  seats  in  this  house,  as  members  of  the  Assembly. 

Resolved,  moreover,  That  the  committee  aforesaid  be  directed  to  request  the 
members  of  said  synod  to  attend  this  Assembly  on  to-morrow,  at  4  P.  M.,  that  we 
may,  unitedl}'^,  return  thanks  to  Almighty  God,  for  the  consummation  of  this  union. 

Rev.  Erskine  Mason,  D.  D.,  was  here  recalled  by  the  plaintiffs. 

Interrogated  by  Mr.  Randall,  the  witness  said :  I  never  knew  an 
instance  of  the  reordination  of  ministers  coming  from  other  deno- 
minations into  the  Presbyterian  Church.  My  father  was  an  or- 
dained minister  of  the  Associate  Reformed  Church,  and  came  into 
the  Presbyterian  Church  under  the  union  of  1821  without  a  reordi- 
nation. The  same  rule  is  observed  in  regard  to  ministers  coming 
from  other  countries.  There  are  instances  of  this  character  in  the 
Presbytery  of  New  York. 

Cross-examined  by  Mr.  Preston,  the  witness  said:  the  Second 
Presbytery  of  New  York,  which  came  into  this  church  from  the 
Associate  Reformed  Church,  under  the  union  of  1821,  has  never 
required  ministers  coming  from  other  bodies  to  subscribe  to  our 
Confession  of  Faith.  They  do  not  use  it  themselves,  as  it  was  not 
required  by  the  terms  of  the  union  between  the  two  churches.  The 
book  of  the  Associate  Reformed  Church  is  that  under  which  they 
act.  The  two  books  differed  in  some  particulars  in  the  Form  of 
Government.  I  do  not  certainly  know  that  the  Confession  of  Faith 
is  the  same  in  all  points.  I  believe  that  it  is  substantially  the  same 
as  the  Westminster  Confession.  I  was  a  member,  formerly,  of  the 
Second  presbytery,  but  now  belong  to  the  Third  presbytery.  The 
Form  of  Government  of  the  Associate  Reformed  Church  is  Presby- 
terian. It  has  sessions  of  ruling  elders.  Foreign  ministers,  that  is, 
those  coming  across  the  Atlantic,  are  subjected  to  an  examination 
and  to  a  probation  of  a  year,  before  they  are  received  by  the  Third 
Presbytery  of  New  York.  We  require  in  the  Third  presbytery  an 
acknowledgment  of  the  Confession  of  Faith  of  the  Presbyterian 
Church. 

Re-examined  by  Mr.  Randall,  the  witness  said :  The  part  of  the 
Westminster  Confession  of  Faith  in  relation  to  civil  magistrates  has 
been  altered  by  both  the  Reformed  and  the  Presbyterian  Churches. 
The  difference  was  not  material.  I  do  not  recollect  distinctly 
what. 

The  constitution  of  the  Associate  Reformed  Church  was  now 
given  in  evidence. 

Mr.  Randall  proposed  to  give  in  evidence  the  testimony  of  Dr. 
Green,  in  the  case  of  Duncan  against  the  Ninth  Presbyterian 
Church.  Dr.  Green  being  one  of  the  respondents  in  this  case,  the 
counsel  for  the  relators  proffer  here  his  testimony  in  that  suit,  as 
unquestionable  evidence,  and  decisive  against  the  respondents  in 
that  case.  Mr.  Ingersoll  would  shortly  favour  him  with  his  notes 
taken  on  that  occasion,  when  he  would  recur  to  the  subject  again. 
With  this  exception  he  now  closed  the  case  for  the  relators. 


159 


The  testimony  for  the  relators  having  closed,  Mr.  Hubbell  opened 
the  case  for  the  respondents,  as  follows : 

May  it  please  the  Court — Gentlemen  of  the  Jury :  You  have  been 
engaged  nearly  a  vv^eek,  in  listening  to  a  series  of  attacks,  (so  to 
speak.)  made  by  the  witnesses,  and  the  counsel  of  the  relators,  upon 
the  party  which  I  and  my  colleagues  have  the  honour  to  represent; 
and  we  have  been  compelled,  by  the  decorum  of  the  court,  to  sit 
and  silently  endure  it.  I  cannot  flatter  myself,  that  these  attacks 
have  made  no  impression  prejudicial  to  my  clients.  You  would  be 
more  or  less  than  human,  had  they  not.  I  only  ask  you  now,  to 
give  me  your  undivided  attention,  while  I  shall  endeavour  to  obli- 
terate these  impressions,  by  stating  succinctly,  the  true  history  of 
this  controversy.  I  engage  to  satisfy  every  candid  mind,  of  the 
purity  of  my  clients'  motives,  and  of  the  justice  and  legaUty  of  their 
proceedings. 

In  order  properly  to  preface  our  defence,  it  will  be  necessary  to 
analyze  the  case  made,  or  attempted  to  be  made  by  the  relators. 

It  seems  to  have  divided  itself  into  two  heads  of  charge  or  in- 
quiry. First,  the  Acts  of  the  General  Assembly  of  1837,  called  by 
our  adversaries,  aflfectedly  and  ex  industria,  "  The  acts  of  excision," 
but  which,  according  to  a  fairer  nomenclature,  should  be  called 
"  declarations  of  disconnexion  or  disowning  acts ;"  for  by  these 
acts,  certain  synods  were  simply  pronounced  to  be  no  part  of  our 
church.  Second,  the  process  of  organization  of  the  General  As- 
sembly in  1838,  by  which  our  adversaries  assert,  that  they  have 
possessed  themselves  of  the  sceptre,  and  by  which  they  claim  to  be 
the  true  succession. 

As  regards  the  first  of  these  points,  the  relators,  (as  far  as  I  can 
gather  their  meaning,)  consider  it  merely  ancillary  to  the  second, 
and  indeed,  his  honour  only  admitted  testimony  on  this  first  point, 
as  explanatory  of  that  adduced,  or  to  be  adduced,  on  the  second. 
In  other  words,  the  relators  have  attempted  to  show,  that  certain 
commissioners  to  the  General  Assembly  of  1838,  were  excluded 
from  their  seats,  in  furtherance  of  certain  acts  of  the  General  As- 
sembly of  1837,  and  assuming  the  infirmity  of  those  acts,  to  deduce 
from  thence  the  invalidity  of  this  exclusion  in  1838.  This  distinc- 
tion must  be  carefully  observed,  as  I  shall  presently  demonstrate  to 
you,  that  the  relators  are  compelled,  by  the  necessity  of  their  own 
case,  to  admit,  that  notwithstanding  those  acts  of  alleged  dismem- 
berment, passed  by  the  General  Assembly  of  1837,  that  Assembly 
retained  its  constitutional,  unimpaired  existence,  up  to  the  last  mo- 
ment of  its  session. 

As  regards  the  relators'  second  point,  it  is  also  to  be  observed, 
that  they  do  not  contend  that  the  exclusion  by  the  clerks,  from  the 
General  Assembly  of  1838,  of  the  delegates,  from  the  presbyteries 
in  the  four  synods,  violates  the  organization  of  1838.  They  appa- 
rently admit  that  the  Assembly  of  1838,  like  that  of  1837,  might 
have  existed  or  lived,  without  the  vivifying  presence  of  those  dele- 
gates. They  merely  contend  that  the  exclusion  was  unlawful,  and 
seek  in  its  unlawfulness  a  justification  for  certain  ulterior  operations, 


160 

which  they  now  declare  to  have  been  a  removal  of  the  offending 
officers,  but  which  were,  as  we  shall  show,  adopted  by  them  with  a 
different  view  and  purpose. 

They  contend  that  the  General  Assembly  had  a  right  to  remove 
the  clerks  who  excluded  these  delegates,  and  the  moderator,  who, 
as  they  assert,  refused  to  allow  the  Assembly  to  correct  the  mis- 
conduct of  the  clerks  in  this  particular;  and  although  they  admit 
that  a  clear  majority  of  the  members,  approved  the  conduct  of  the 
clerks  and  the  moderator,  yet,  as  this  majority  sat  indignantly  silent, 
when  Mr.  Cleaveland  made  a  disorderly  motion,  if  motion  it  may 
be  called,  and  treated  it  as  a  tumult  and  an  outrage,  they  must  have 
been  considered  to  have  voted  affirmatively.  In  other  words,  that 
this  was  a  vote  of  the  house,  setting  up  an  opposing  organization, 
and  committing  suicide  upon  its  own. 

When  their  case  is  divested  of  all  extrinsic  circumstances,  it  re- 
solves itself  into  this  one  narrow  and  truly  absurd  position,  viz. 
"  That  the  majority,  when  they  meant  '  JVo,''  and  declared  their  mean- 
ing in  every  possible  mode,  but  the  use  of  that  monosyllable,  must  be 
construed  to  have  meant  '  yes.''  "  As  we  conceive,  all  the  other  evi- 
dence, by  which  you  have  been  wearied,  is  foreign  to  this  cause ; 
and  this  will  be  apparent,  when  you  reflect  that  the  power  of  the 
Assembly  to  remove  its  officers,  if  it  exist  at  all,  is  not  confined  to 
the  exigency  of  their  misconduct,  but  may  be  exercised  at  the  plea- 
sure of  the  Assembly,  with  or  without  reason,  "  stat  pro  ratione 
voluntas."  Our  adversaries  maintain  that  the  Assembly  did  remove 
these  officers :  if  it  did,  why  then  have  days  been  wasted  in  the 
attempt  to  prove  that  they  were  deserving  of  removal? 

They  may,  perhaps,  mean  to  say,  "  these  officers  committed  a 
wrong,  and  a  majority  of  the  members  upheld  them,  it  was  there- 
fore licenseable  for  the  minority  to  practice  this  legerdemain,  al- 
though it  is  manifest  it  could  only  have  succeeded  by  surprise,  mis- 
conception, and  error." 

If  the  members  from  the  disowned  synods  have  been  injured, 
(which  we  deny,)  surely  there  was  some  method  by  which  they  and 
their  favourites  might  have  brought  this  question  of  their  right  to 
seats  in  the  Assembly,  before  the  tribunals  of  the  country,  without 
the  indecorous  proceedings  which  took  place  in  1838,  and  without 
destroying  the  rights  of  those  opposed  to  them.  But,  as  we  fear, 
they  have  been  governed  by  another  spirit,  (engendered  no  doubt 
by  honest  but  mistaken  motives,)  and  have  sought  to  make  a  profit 
from  this  supposed  injury.  Not  content  with  regaining  their  own 
rights,  they  seek  to  usurp  those  of  others. 

Such,  gentlemen,  is  the  case  of  the  relators.  We  have  endea- 
voured to  restrict  them  to  what  we  consider  the  true  issue  formed 
by  the  pleadings.  His  Honour,  however,  has  not  sustained  these 
endeavours,  and  we  have  submitted,  as  we  hope  with  grace,  to  his 
decision,  although  it  entails  upon  us  the  necessity  of  being  as  dis- 
cursive as  the  relators  have  been. 

This  unhappy  Church  has  been  for  years  a  house  divided  against 
itself.  Its  dismemberment  might  therefore  have  been  predicted 
long  before  the  catastrophe  occurred.     This  division  is  not  a  mere 


161 

logomachy,  or  war  of  words,  as  the  counsel  for  the  relators  has  as- 
serted, but  a  wide  variance  in  tenets.  Tenets  so  dissimilar,  that, 
like  liquids  of  different  gravity  and  consistency,  they  cannot  be  com- 
mingled. It  is  a  substantial  difference  on  some  of  the  most  affecting 
subjects  of  human  consideration. 

Our  party  are  for  a  strict  adherence  to  the  doctrinal  standards 
of  the  Church.  Their  party  accept  them  only  for  substance  of  doc- 
trine. They  cannot  and  do  not  dispute  our  Presbyterianism,  but 
theirs  is  of  a  more  equivocal  character,  though  they  decline  from 
the  standards  in  different  degrees  of  departure.  Some  of  them  are 
nearly  right,  others  are  widely  wrong. 

Our  doctrines  are  taught  at  the  Seminary  of  Princeton,  in  all 
their  purity.  That  institution  has,  from  its  origin,  been  the  prin- 
cipal seat  of  orthodoxy.  There  it  is  taught  with  fidelity,  defended 
with  zeal,  and  adorned  with  learning.  The  other  party  have  their 
seminaries,  where  their  peculiar  views  are  inculcated,  and  from 
whence  they  are  diffused  with  indefatigable  diligence. 

Permit  me  to  point  out  a  few  fundamental  differences  of  tenet. 

One  principally  to  be  marked,  for  it  is  the  root  of  many  others, 
is  an  abstract  opinion  in  regard  to  theology  itself.  We  maintain 
that  it  emanated  from  the  Almighty,  in  his  revelations,  in  a  state  of 
entire  perfection.  That  it  sprung  from  the  mind  of  the  Deity  in  its 
full  developed,  adult  proportions,  and  knew  no  infancy,  or  youth. 
Our  adversaries,  on  the  contrary,  maintain  that  theology  is  an  ad- 
vancing, improveable  science.  That  the  old  formularies  of  the 
Christian  faith  are  too  antiquated  for  this  enlightened  age! 

Another  subject  of  difference  is  the  effect  of  Adam's  sin,  or  fall, 
upon  his  posterity.  Our  party  maintain  that  the  sin  of  Adam  is 
imputed  to  his  posterity — that  it  is  made  their  sin.  We  subject  our 
mere  human  reason  to  the  unequivocal  teachings  of  holy  writ,  and 
for  an  explanation  humbly  wait  the  great  teacher,  death.  Our  ad- 
versaries, on  the  contrary,  maintain  that  the  sin  of  Adam  is  not  im- 
puted to  his  posterity,  and  made  their  sin,  but,  that  by  Adam's  fall, 
it  is  made  absolutely  certain  and  necessary,  (in  some  incompre- 
hensible manner)  that  each  and  all  his  posterity  will  sin. 

Another  subject  of  difference  is  one  which  no  human  being, 
whether  philosopher  or  Christian,  can  contemplate  with  indifference. 
It  is  the  power  of  the  Deity  over  our  moral  nature.  Our  party 
maintain  that  he  is  almighty,  not  only  over  the  physical,  but  the 
moral  constitution  of  man,  and  that  by  a  single  act  of  his  will  he 
can  make  his  creature  good,  how  deeply  soever  that  creature  may 
be  immersed  in  depravity  and  crime.  The  other  party  have  sought 
to  limit  Omnipotence,  and  say,  "thus  far  shalt  thou  go,  but  no 
farther."  They  maintain  that  a  man  may  be  bad  against  the  will 
of  the  Deity,  and  the  only  means  by  which  he  can  change  him  is 
by  moral  suasion,  or  by  the  inciting  exhibition  of  motives. 

Another  great  subject  of  difference  is  the  nature  of  the  sacrifice 
upon  Calvary;  the  true  understanding  of  the  Atonement,  and  the 
effect  of  the  sufferings  of  Christ.  We  maintain  that  it  was  a  satis- 
faction of  the  violated  law;  a  tribute  to  Divine  justice,  by  which  a 
righteous  God  was  propitiated.    That  Christ  became  our  substitute, 

14* 


162 

and  underwent  death  for  us.  That  the  merits  of  Christ,  his  obe- 
dience, in  the  fulfilment  of  the  law  by  his  voluntary  death,  is  im- 
puted to  our  race  through  faith ;  that  is,  to  the  believers  of  our  race, 
in  the  same  manner  that  the  sin  of  Adam  was  imputed  to  us.  On 
the  other  hand,  our  adversaries  deny  the  doctrine  of  imputation, 
and  contend  that  he  was  always  a  placable  God,  and  ready  to  be- 
stow pardon  as  soon  as  governmental  justice  would  permit.  They 
deny  that  his  law  requires  an  infinite  victim,  or  that  Christ  yielded 
himself  as  such  a  victim,  or  bore  the  penalty  of  the  law.  They 
maintain  that  justification  is  merely  pardon,  and  the  condition,  faith. 
Another  great  topic  of  difierence  is  the  subject  of  regeneration 
or  conversion,  or  the  precise  process  or  plan  by  which  the  heart  of 
the  sinner  is  changed.  We  maintain  that  it  is  merely  an  act  of 
Omnipotence.  That  the  sinner  has  no  ability  of  his  own  to  concur 
in  that  work;  that  his  change  is  an  act  of  God's  grace,  and  that  it 
may  be  instantaneous.  They,  on  the  contrary,  maintain,  that  since 
the  atonement  of  Christ,  the  sinner  is  competent  to  his  own  regene- 
ration, and  that  the  process  is  gradual. 

Such,  gentlemen,  are  the  summa  vestigia,  or  general  outlines  of 
this  great  dispute,  which  has  caused  the  separation  of  this  Church. 
A  cordial  re-union  is  impossible.  A  separation  has  been  effected 
and  made  permanent  for  the  sake  of  peace  and  religion.  This  is 
that  great  dispute  which  has  abrupted  friendships,  divided  families, 
and  engendered  strifes.  It  is  in  your  power  to  rebuke  this  heaving 
tumult  of  the  passions,  and  bid  them  be  tranquil  for  ever. 

Such,  gentlemen,  was  the  state  of  the  parties,  and  such  the  dis- 
tractions of  this  Church,  when  the  session  of  1887  commenced.  It 
was  well  known  throughout  the  land,  that  a  great  struggle  would 
occur  at  this  session.  The  parties,  therefore,  put  forth  their  strength 
at  the  election,  and  the  decided  majority  of  the  Old  School  party 
on  the  floor  of  this  Assembly,  leaves  no  doubt  that  they  were  and 
are  the  predominant  party  in  this  church ;  and  that  the  principles 
of  theology,  which  they  acknowledge  are  the  true  tenets,  in  the 
opinion  of  a  majority  of  true  worshippers  in  this  Church,  and  that 
the  doctrines  of  their  adversaries  are  heretical.  Nor  was  this  ma- 
jority accidental,  for  it  was  even  more  decided  in  the  Assembly  of 
1838,  when,  the  relators  will  admit,  every  nerve  had  been  strained 
by  both  parties,  to  acquire  the  mastery  of  numbers. 

I  say  that  a  great  struggle  was  anticipated.  For  it  was  known 
that  two  systems  of  theology  existed  in  the  church,  and  both  could 
not  be  permitted  to  be  taught  in  an  institution  expressly  formed  to 
preserve  uniformity  of  creed.  This  church  having  adopted  a  stand- 
ard of  faith  or  a  system  of  holy  truths,  it  admits  no  double  construc- 
tion of  them.  They  can  have  but  one  meaning,  and  if  there  be 
doubt  as  to  what  that  meaning  may  be,  the  constitution  of  the 
church  refers  that  doubt  to  its  great  council,  which  has  power 
authoritatively  to  settle  that  doubt,  and  to  declare  what  the  church 
shall  teach  as  the  true  construction  of  the  standards. 
Form  of  Government,  chap.  XII.,  sec.  v. 
"  To  the  General  Assembly  belongs  the  power  of  deciding  in  all 


163 

controversies   respecting   doctrine  and   discipline;   of  reproving, 
warning,  or  bearing  testimony  against  error  in  doctrine." 

From  the  decision  of  this  great  council,  there  is  no  appeal,  and 
when  the  General  Assembly  declares  a  doctrine  heretical,  it  must 
no  longer  be  heard  in  a  Presbyterian  church.  Its  maintainers  must 
either  conform  to  this  decision,  or  go  elsewhere  and  form  new  as- 
sociations: of  which  they  may,  at  their  pleasure,  make  what  are 
heresies,  when  compared  with  our  standards.  This  decision  of  the 
General  Assembly,  is  the  decision  of  the  majority  of  that  Assembly, 
and  hence  it  results,  (however  harsh  it  may  seem,)  that  the  con- 
struction which  the  majority  put  upon  the  standards,  is  orthodoxy, 
and  that  of  the  minority  is  heresy.  This  power  is  necessary  to, 
and  inherent  in  every  church  establishment,  or  it  ceases  to  be  a 
church,  call  it  what  you  please.  This  decision  may  be  given  either 
in  the  process  of  a  judicial  trial,  and  be  the  sentence  upon  an  indi- 
vidual heretic,  or  it  may  be  an  abstract  declaration  of  the  Assembly, 
or  "bearing  of  testimony"  against  heretical  doctrines. 

In  whatever  form  this  declaration  of  the  Assembly  may  be  given 
against  a  particular  opinion,  that  opinion  is  heresy,  and  must  be 
abandoned  by  the  faithful.  The  malcontents  have  no  alternative 
but  submission  or  secession. 

This  uniformity  of  opinion  is  neither  impracticable  nor  difficult. 
This  church  itself  existed  nearly  half  a  century,  in  harmonious  and 
halcyon  repose.  The  two  parties  which  now  distract  it  are,  (each 
being  contemplated  by  itself,)  of  homogeneous  materials,  and  capa- 
ble of  forming  a  peaceful  church. 

That  nothing  might  be  left  undone  which  Christian  charity  seemed 
to  require,  upon  a  proposition  emanating  from  a  member  of  our 
party,  a  committee  was  appointed,  consisting  of  five  members  from 
each  party,  for  the  purpose  of  negotiating  an  amicable  separation. 
The  effort  failed  by  the  fault  of  our  adversaries,  for,  although  they 
admitted  that  "  the  experience  of  many  years  has  proved  that  this 
body  is  too  large  to  insure  the  purposes  contemplated  by  the  con- 
stitution," and  that  "  in  the  extension  of  the  church,  over  so  great  a 
territory,  embracing  such  a  variety  of  people,  difference  of  view  in 
relation  to  important  points  of  church  policy  and  action,  as  well  as 
theological  opinion,  are  found  to  exist,"  and  that  "  a  division  will  be 
of  vital  importance  to  the  best  interests  of  the  Redeemer's  king- 
dom:" (I  cite  their  language,  Minutesof  1837,  page  432:)  yet  they 
imposed  one  condition,  to  which  no  true  lover  of  the  church  could 
submit — viz:  that  the  church  should  be  destroyed,  and  two  new 
churches  created  from  its  fragments  !  We  allowed  them  their  own 
terms  in  regard  to  their  share  in  the  property  of  the  church — nay, 
had  they  asked  it  all,  it  would  have  been  given  to  them  ;  but,  as  the 
majority,  as  the  possessors  and  representatives  of  all  the  old  seats 
of  Presbyterianism,  as  the  party  who  confessedly  and  rigidly  ad- 
hered to  her  standards,  we  asked  to  be  allowed  to  maintain  the 
succession  of  our  fathers!  Our  adversaries  would  only  grant  us 
peace  upon  the  condition  that  we  should  destroy  all  for  which  we 
had  hitherto  been  contending  ! 

It  will  now  be  my  duty  to  explain  to  you  the  real  character  of 


164 

the  much  abused  transactions  of  1837,  by  a  studied  misnomer, 
called,  the  acts  of  excision,  viz :  the  resolutions  of  the  Assembly  of 
that  year,  declaring  the  Synods  of  the  Western  Reserve,  Utica, 
Geneva,  and  Genessee,  to  be  no  part  of  the  Presbyterian  Church. 

When  the  great  controversy,  which  I  have  described,  was  at  its 
height,  attention  was  drawn  to  an  imposthume  which  had  long  af- 
flicted the  church,  but  which,  being  filmed  over  and  disguised,  had 
hitherto  escaped  detection.  I  mean  New  England  Congregational- 
ism, which  had  insidiously  undermined  the  Presbyterian  constitu- 
tion, and  was  the  fatal  source  of  all  these  errors  in  doctrine,  which 
afflicted  our  church. 

The  New  School  party  is  emphatically  a  New  England  party,  it 
being  composed,  in  a  great  measure,  of  New  Englanders,  or  their 
descendants.  New  England  Calvinism  is  not  Presbyterianism ; 
they  are  Congregationalists  or  Independents,  and  are  the  lineal  or 
collateral  descendants  of  the  English  Independents,  who,  under  the 
guidance  of  Cromwell,  drove  out  Presbyterianism,  after  Presbyte- 
rianism had  driven  out  Episcopacy.  Our  New  England  brethren 
are  proverbially  shrewd,  acute,  indefatigable,  and  ambitious,  and 
are  seldom  introduced  into  our  institutions  without  becoming  mas- 
ters of  them.  The  party  which  I  represent,  have  long  apprehended 
a  design  in  their  adversaries  to  convert  the  funds,  the  institutions, 
and  above  all,  the  name,  of  this  venerable  church  into  the  means  of 
furthering  this  peculiar  system  of  theology,  and  various  other  pro- 
jects of  their  own. 

The  instrument  by  which  they  have  obtained  admittance  into  our 
church,  is  a  certain  plan  or  agreement  of  Union  between  this  church 
and  the  Congregational  Association  of  Connecticut,  adopted  in  the 
year  1801,  which  admits  Congregationalists,  upon  certain  terms, 
which  I  shall  presently  describe,  into  the  bosom  of  this  Presbyterian 
institution. 

The  essence  of  Presbyterianism  is  a  government  by  ruling  elders, 
and  the  profession  of  Calvinistic  doctrines.  A  church  which  is  de- 
ficient in  either  of  these  elements,  is  not  a  Presbyterian  church. 
The  doctrines  are,  of  course,  considered  of  divine  origin,  and  the 
government  by  ruling  elders  is  deemed  not  less  so,  and,  therefore, 
it  is  not  capable  of  change  or  modification.  The  constitution  of 
this  church  is  strictly  Presbyterian,  both  in  these  particulars,  and 
also  in  all  the  other  details  of  its  government.  The  primary  go- 
vernment is  the  church  session,  composed  of  ruling  elders,  elected 
by  the  congregation  for  life,  ordained  by  a  regular  process,  and 
pledged  to  our  written  Confession  of  Faith,  and  of  the  minister  who 
is  ordained  in  a  similar  manner,  by  the  presbytery,  which  is  the  next 
highest  tribunal.  The  church  session  may  try  any  member  of  the 
congregation,  for  ecclesiastical  offences,  with  an  appeal  to  the  pres- 
bytery, but  the  church  session  cannot  try  or  dismiss  the  minister. 
When  once  ordained,  this  clerical  officer  holds  independently  of  his 
congregation,  and  is  only  amenable  to  his  presbytery.  The  Con- 
gregational system  has  no  church  session  composed  of  ruling  elders, 
elected  and  ordained  for  life.  It  wants  this  essential,  and,  as  we 
believe,  apostolical  feature  of  Presbyterianism.     The  government 


165 

of  the  Congregational  Churches,  is  vested  in  the  whole  of  the  male 
members  of  the  church.  They  elect  their  own  ministers,  and  de- 
pose them  at  will.  They  have  no  Confession  of  Faith.  Each 
church  is  independent  of  all  others,  or  only  connected  in  associa- 
tions for  mutual  advice.  In  the  Presbyterian  Church  there  is,  on 
the  contrary,  a  regular  system  of  connexion  and  subordination. 
Above  the  church  session,  and  controlling  it  by  appeals  and  other- 
wise, is  the  presbytery,  which  has  ecclesiastical  rule  over  a  territory 
containing  several  churches.  All  the  ministers,  and  a  representa- 
tive ruling  elder  from  each  church  within  this  territory,  compose 
the  presbytery.  These  presbyteries  are  the  constituent  bodies, 
which  are  represented  by  delegates  in  the  General  Assembly.  The 
synods  are  judicatories  superior  to  the  presbyteries,  embracing  a 
wider  territorial  jurisdiction,  but  as  they  are  not  represented  in  the 
General  Assembly,  are  no  more  in  the  church  polity,  than  an  ap- 
pellate judicatory. 

Here,  gentlemen,  let  me  pause,  and  request  you  to  observe  the 
effect  of  this  constitution  of  things.  The  delegates  to  the  General 
Assembly  are  elected  by  the  presbyteries,  and  the  delegates  who 
compose  the  presbyteries,  must  be  ruling  elders  from  the  churches. 
Of  course,  it  results,  that  if  there  be  any  thing  vicious  and  uncon- 
stitutional in  the  primary  delegation,  that  is  from  the  churches  to 
the  presbytery,  it  will  affect  and  vitiate  that  from  the  presbyteries 
to  the  General  Assembly.  If  the  churches  should  send  mere  lay- 
men, instead  of  ordained  elders  to  the  presbyteries,  these  presbyte- 
ries are  viciously  constituted,  and  the  delegates  from  such  presby- 
teries to  the  General  Assembly,  are  elected  by  a  false  and  uncon- 
stitutional constituency. 

On  the  apex  of  this  pyramid  of  subordinate  tribunals,  sits  that 
august  body,  the  General  Assembly.  It  unites  the  wisdom  of  all, 
and  by  the  weight  and  pressure  of  its  authority,  keeps  the  inferior 
parts  in  their  true  position,  and  preserves  the  beautiful  symmetry 
of  the  whole. 

But  the  Plan  of  Union  marred  this  structure,  for  it  provides, 
among  other  things, 

"That  if  any  congregation  consists  partly  of  those  who  hold  the 
Congregational  form  of  discipline,  and  partly  of  those  who  hold  the 
Presbyterian  form,  we  recommend  to  both  parties,  that  this  be  no 
obstruction  to  their  uniting  in  one  church,  and  settling  a  minister. 
And  that,  in  this  case,  the  church  choose  a  standing  committee 
from  the  communicants,  whose  business  it  shall  be  to  call  to  account 
every  member  of  the  church  who  shall  conduct  himself  inconsist- 
ently with  the  laws  of  Christianity,  and  to  give  judgment  on  such 
conduct.  And  if  the  person  condemned  by  this  judgment,  be  a 
Presbyterian,  he  shall  be  at  liberty  to  appeal  to  the  presbytery;  if 
a  Congregationalist,  he  shall  be  at  liberty  to  appeal  to  the  body  of 
male  communicants  of  the  church:  in  the  former  case,  the  deter- 
mination of  the  presbytery  shall  be  final,  unless  the  church  consent 
,to  a  further  appeal  to  the  synod,  or  to  the  General  Assembly;  and 
in  the  latter  case,  if  the  party  condemned  shall  wish  for  a  trial,  by 
a  mutual  council,  the  cause  shall  be  referred  to  such  council.    And 


166 

provided,  the  said  standing  committee  of  any  church,  shall  depute 
one  of  themselves  to  attend  the  presbytery,  he  may  have  the  same 
right  to  sit  and  act  in  the  presbytery  as  a  ruling  elder  of  the  Pres- 
byterian Church." — Assem.  Dig.  p.  298. 

This  Plan  of  Union  was  adopted  at  the  solicitation  of  the  Asso- 
ciation of  Connecticut,  and  it  was  intended  as  a  temporary  provi- 
sion to  foster  the  formation  of  churches  on  the  frontier,  "  with  a 
view  to  prevent  alienation,  and  to  promote  union  and  harmony  in 
those  new  settlements  which  are  composed  of  inhabitants  from 
these  bodies." — Dig.  297. 

Every  provision  of  this  Plan  of  Union  which  I  have  read  to  you, 
is  a  violation  of  the  constitution  of  the  Presbyterian  Church.  It 
introduces  into  the  body  of  the  Presbyterian  Church,  whole  con- 
gregations of  communicants  who  have  not  professed  our  standards 
of  faith — who  are  not  governed  by  ruling  elders — and  who  are, 
therefore,  not  Presbyterians.  It  enables  congregations  to  send  un- 
ordained  lay  delegates  to  the  presbyteries.  It  takes  away  from 
Presbyterians  the  right  of  appeal  from  the  decisions  of  the  presby- 
teries. It  introduces  into  the  body  of  the  church  persons  who  are 
not  subject  to  the  tribunals  of  the  church.  If  the  Presbyterian  form 
of  government,  in  its  essential  features,  be  of  divine  origin,  (which 
is  the  faith  of  our  church,)  then  these  alterations  in  its  essential 
structure,  would,  under  any  circumstances,  be  without  warrant  or 
foundation,  but  considered  simply  as  human  institutions,  their  alter- 
ations were  void,  because  not  submitted  to  the  presbyteries. 

"  Before  any  overtures  or  regulations  proposed  by  the  Assembly, 
to  be  established  as  constitutional  rules,  shall  be  obligatory  on  the 
churches,  it  shall  be  necessary  to  transmit  them  to  all  the  presby- 
teries, and  to  receive  the  returns  of  at  least  a  majority  of  them,  in 
writing,  approving  thereof." — Form  of  Gov.  p.  365. 

They  will  be  void,  too,  in  the  consideration  of  this  civil  tribunal, 
as  conflicting  with  the  act  of  the  Legislature  of  Pennsylvania,  in- 
corporating the  "  Trustees  of  the  General  Assembly  of  the  Pres- 
byterian Church  in  the  United  States  of  America."  The  power  of 
electing  these  trustees  being  given  to  "  the  ministers  and  elders 
forming  the  General  Assembly  of  the  Presbyterian  Church." 

Besides,  the  direct  unconstitutional  provisions  in  this  Plan  of 
Union,  it  was  made  the  cover  of  various  other  unconstitutional 
practices.  This  plan  provides,  in  the  section  read,  for  mixed 
churches;  but  pure  Congregational  churches,  without  any  inter- 
mixture of  Presbyterianism,  owing  to  the  laxity  produced  by  this 
Plan  of  Union,  sent  their  unordained  lay  delegates  to  the  presby- 
teries, and  were  admitted. 

When  controversy  called  attention  to  the  subject,  it  was  ascer- 
tained that,  by  means  of  this  Plan  of  Union,  and  the  abuses  that 
originated  with  it,  there  were,  in  the  bounds  of  the  Synod  of  the 
Western  Reserve,  one  hundred  and  nine  churches,  out  of  one  hun- 
dred and  thirty-nine,  purely  Congregational  or  mixed.  And  in  the 
Synods  of  Utica,  Geneva,  and  Genessee,  two-fifths  of  the  churches 
were  Congregational  or  mixed.  Here  was  this  vast  body  of  Con- 
gregationalists,   although  denying   our   standards,   rejecting   and 


167 

scoffing  at  our  form  of  government,  and  in  no  wise  subject  to  our 
discipline,  or  to  our  tribunals,  yet  participating  in  our  counsels, 
voting  upon  our  questions  of  faith  or  doctrine,  and  actually  inflict- 
ing upon  us  the  discipline  of  a  code,  whose  authority  upon  them- 
selves they  utterly  deny.  They  were  themselves  conscious  of  the 
absurdity  of  their  claims,  and  of  our  submission  to  them,  and  there- 
fore, in  the  statistical  reports  which  they  made  to  the  Assembly, 
disguised  themselves  under  the  name  oi  Presbyterian  churches. 

In  the  great  struggle  which  was  anticipated  between  tlie  parties 
thus  divided,  it  was  the  determination  of  those  whom  I  represent, 
that  none  but  Presbyterians  should  participate,  and  in  this  determi- 
nation originated  the  acts,  in  regard  to  which  there  has  been  so 
much  clamour.  That  the  purpose  was  just,  constitutional,  and 
proper,  none  who  have  heard  my  statement  can  doubt.  The  ques- 
tion now  to  be  agitated  is,  whether  the  means  used  to  effect  that 
purpose  were  equally  commendable. 

These  means  were,  the  passing  of  a  resolution  by  the  General 
Assembly,  abrogating  the  Plan  of  Union,  as  unconstitutional  and 
void  from  its  origin,  and  certain  acts  disowning  the  Synods  of  the 
Western  Reserve,  Utica,  Genessee,  and  Geneva. 

Our  adversaries  have  thought  fit  to  represent  these  acts  as  tyran- 
nical, because,  (as  they  assert,)  they  disfranchised  500  ministers, 
599  churches,  and  60,000  communicants.  This  statement  has  been 
so  often  repeated,  and  so  many  changes  have  been  rung  upon  it, 
that  you  will  perhaps  be  surprised  to  hear  me  assert  that  it  is  untrue. 
I  will  presently  prove  to  you,  that  no  minister,  church,  or  commu- 
nicant, has  been  disfranchised  by  these  acts. 

Our  adversaries  have  also  thought  fit  to  represent  these  acts  as 
a  condemnation,  without  hearing,  of  500  ministers,  599  churches, 
and  60,000  communicants;  this  is  also  untrue. 

These  acts  were  simply  requisitions  made  by  the  General  As- 
sembly, upon  the  presbyteries  and  churches  within  the  bounds  of 
these  synods,  that  they  should  ask  such  Congregational  churches, 
as,  under  the  Plan  of  Union,  or  by  falsely  representing  themselves 
to  be  Presbyterians,  had  gained  access  to  the  judicatories  of  the 
church,  to  adopt  our  form  of  government,  or  if  they  refused,  then 
to  shake  them  ofl^.  So  far  from  disfranchising  599  churches,  none 
were  to  be  excluded  from  our  connexion,  if  they  would  adopt  our 
form  of  government;  or,  in  the  case  of  their  obstinate  nonconfor- 
mity, the  measure  would  result  in  the  exclusion  of  but  two  hundred 
and  sixty-nine  churches,  or  thereabout,  that  being  the  estimated 
number  of  Congregational  churches  in  the  bounds  of  these  synods. 
The  residue  of  the  599  churches  being  Presbyterian,  were  in  no 
substantial  manner  affected  by  these  acts.  As  to  the  509  ministers, 
they  were  not,  in  the  least  degree,  the  subject  of  these  measures, 
for  none  of  them  were  Congregational ;  the  clergy  of  this  district 
having,  almost  without  exception,  caused  themselves  to  be  ordained 
as  Presbyterians,  preferring,  no  doubt,  the  more  stable  tenure  of 
office  which  that  institution  afforded  them.  These  disowning  acts 
simply  required  of  them  to  leave  one  presbytery  and  go  to  another 
most  convenient  to  themselves.     As  regards  the  60,000  commu- 


168 

nicants,  if  the  churches  in  which  they  worshipped  did  not  choose  to 
adopt  the  Presbyterian  form  of  government,  each  individual  had 
but  to  enter  the  nearest  Presbyterian  church,  and  claim  the  bene- 
fits of  communion.  As  regards  them,  those  denounced  acts  merely 
require  them  not  to  continue  to  worship  in  churches  which  would 
not  adopt  our  discipline  and  order. 

That  such  is  the  true  operation  of  these  acts,  will  be  apparent  to 
any  unprejudiced  man  who  will  peruse  them. 

They  are,  perhaps,  unskilfully  drawn,  and  if  but  part  of  them  be 
read,  they  seem  to  justify  the  aspersions  of  our  adversaries;  but  if 
the  whole  be  read  together,  then  the  injustice  which  has  been  done 
to  us  will  be  apparent. 

"That  in  consequence  of  the  abrogation  by  this  Assembly  of  the 
Plan  of  Union  of  1801,  between  it  and  the  General  Association  of 
Connecticut  as  utterly  unconstitutional,  and  therefore  null  and  void 
from  the  beginning,  the  Synods  of  Utica,  Geneva,  and  Genessee, 
which  were  formed  and  attached  to  the  body  under,  and  in  execu- 
tion of  this  Plan  of  Union  be,  and  are  hereby  declared  to  be  out  of 
the  ecclesiastical  connexion  of  the  Presbyterian  Church  in  the 
United  States  of  America,  and  that  they  are  not  in  form  or  in  fact 
an  integral  portion  of  said  church." 

He  that  should  stop  here,  would  perhaps  deceive  you  and  himself, 
but  let  us  continue. 

"That  inasmuch  as  there  are  reported  to  be  several  churches 
and  ministers,  if  not  one  or  two  presbyteries,  now  in  connexion  with 
one  or  more  of  said  synods,  which  are  strictly  presbyterian  in  doc- 
trine and  order,  be  it  therefore  farther  resolved,  that  all  such 
churches  and  ministers  as  wish  to  unite  with  us,  are  hereby  directed 
to  apply  for  admission  into  those  presbyteries  belonging  to  our  con- 
nexion, which  are  most  convenient  to  their  respective  location  ;  and 
that  any  such  presbytery  as  aforesaid,  being  strictly  Presbyterian 
in  doctrine  and  order,  and  now  in  connexion  with  either  of  said 
synods,  as  may  desire  to  unite  with  us,  are  hereby  directed  to  make 
application,  with  a  full  statement  of  their  cases,  to  the  next  General 
Assembly,  which  will  take  proper  order  thereon."  From  this  it  is 
manifest  that  the  nature,  character,  and  object  of  these  acts  are  just 
what  I  have  asserted,  and  no  more.  No  Presbyterian  minister  is 
injured,  unless  it  be  an  injury  which  entitles  him  to  turn  his  para- 
cidal  hand  against  his  church,  that  the  General  Assembly  has  re- 
moved his  connexion  from  one  presbytery  to  another,  and  that  other 
of  his  own  selection.  No  Presbyterian  church  is  injured,  unless  it 
be  an  injury  to  detach  them  from  one  presbytery  and  annex  them 
to  another.  I  have  not  heard  from  our  adversaries,  how  these  re- 
movals were  injuries,  except  that  by  the  statutes  of  the  church, 
when  a.  minister  removes  from  one  presbytery  to  another,  he  is 
bound  to  undergo  an  examination  on  practical  religion!  Would  it 
not  be  as  well  for  the  church,  that  all  its  pastors  should  undergo  such 
an  examination  periodically'?  It  certainly  can  be  no  great  hard- 
ship, when  the  ministers  themselves  select  the  presbyteries  to  which 
they  will  apply.  As  regards  the  presbyteries  in  these  synods,  which 
are  strictly  Presbyterian  in  doctrine  and  order,  a  kindly  provision 


169 

is  made  for  ihem.  But  were  it  otherwise,  it  would  be  a  matter  of 
indifference,  for  when  the  churches  and  ministers  are  provided  for, 
all  that  equity  and  justice  require  is  fulfilled;  the  presbyteries  are 
merely  artificial  bodies,  and  incapable  of  having  rights  apart  from 
those  of  their  constituents.  They  are,  it  is  true,  in  some  sense,  the 
constituent  bodies  of  the  General  Assembly,  but  that  is  merely  in 
the  sense  of  electoral  colleges,  sending  delegates  to  represent,  not 
their  own  rights,  but  those  of  their  constituents.  Thus  I  have  de- 
monstrated, that,  by  these  acts,  no  essential  part  of  the  Presbyterian 
Church  was  excinded,  except  at  their  own  election  and  by  their 
own  obstinacy.  These  acts  do  not  compel  the  presbyteries,  churches 
and  ministers,  to  continue  their  connexion  with  us,  but  merely  by 
requiring  from  them  an  act  of  adhesion,  put  it  in  the  power  of  the 
malcontents,  to  retire  and  voluntarily  relinquish  the  connexion  with 
us.  With  the  same  view,  the  disowning  acts  contain  the  followino; 
provisions: 

*'  That  the  General  Assembly  has  no  intention,  by  these  resolu- 
tions, to  afifect  in  any  way  the  ministerial  standing  of  any  members 
of  either  of  said  synods;  nor  to  disturb  the  pastoral  relation  in  any 
church  ;  nor  to  interfere  with  the  duties  or  relations  of  private  Chris- 
tians in  their  respective  congregations;  but  only  to  declare  and 
determine  according  to  the  truth  and  necessity  of  the  case,  and  by 
virtue  of  the  full  authority  existing  in  it  for  that  purpose,  the  relation 
of  all  said  synods,  and  all  their  constituent  parts,  to  this  body  and 
to  the  Presbyterian  Church  in  the  United  States." 

It  was  contemplated,  as  I  have  said,  that  the  Presbyterians  in  these 
synods  might  prefer  their  Congregational  Associations  to  ours;  this 
declaration  was  therefore  adapted  to  such  a  contingency.  It  leaves 
them  a  complete  church  system,  should  they  choose  to  declare  their 
independence.  These  acts  did  not  go  into  those  synods,  presbyte- 
ries, and  churches,  and  expurge  them  of  Congregationalism,  and 
thus  reduce  them  to  a  fragmentary  state:  but  by  acting  upon  whole 
synods,  they  benevolently  gave  these  churches  the  option  of  our 
communion,  or  of  a  separate  organization  of  their  own,  ready  to 
their  hands,  in  sj'nods,  presbyteries,  and  churches.  And  here  let 
me  observe,  that  we  are  in  the  habit  of  calling  our  church  the  Pres- 
byterian Church,  whereas,  it  is  more  properly  a  Presbyterian 
Church;  connexion  with  us  is  not  necessary  to  Presbyterianism. 
There  may  be,  and  are  in  this  country  other  churches  essentially 
Presbyterian,  which  are  unconnected  with  us.  Those  churches 
which  might  retire  from  our  connexion  would  not  thereby  lose  their 
Presbyterian  character,  if  otherwise  entitled  to  it. 

Many  clergymen  and  churches  within  these  synods,  have  con- 
formed to  the  requisitions  of  the  disowning  acts,  and  are  now  in  full 
connexion  with  our  Church.  The  mass  of  them  have  refused  to 
comply.  They  met  in  convention,  and  determined  to  reject  the 
means  of  restoration  which  we  pointed  out  to  them,  and  resolved 
to  cast  themselves  upon  us  with  their  burthen  of  Congregationalism ; 
and  now  as  a  means  of  tyrannizing  over  us,  falsely  represent  that 
we  have  tyrannized  over  them. 

The  other  untrue  representation,  with  which  our  adversaries  have 

15 


170 

endeavoured  to  excite  passion  and  prejudice  against  us,  is,  that  we 
have  condemned  599  churches,  509  ministers,  and  00,000  commu- 
nicants, without  a  trial,  or  an  opportunity  of  defence.  I  have  just 
demonstrated  that  it  is  only  the  Congregational  portion  of  these  599 
churches,  and  60,000  communicants,  which  has  been  affected  by 
these  acts.  This  action  of  the  General  Assembly  to  expurgate  Con- 
gregationalism bears  no  resemblance  to  a  cundemnation,  and  it 
would  have  been  impossible  to  have  subjected  the  obnoxious 
churches  to  a  trial.  Try  them!  for  what?  For  being  Congrega- 
tional in  their  order?  That  certainly  is  no  crime.  Try  them! 
They  do  not  acknowledge  your  jurisdiction  ;  they  participate  in  go- 
verning you  by  sending  their  lay  delegates  into  your  judicatories, 
but  they  are  not  subject  to  your  tribunals.  The  only  tribunal  to 
which  they  are  subject  by  the  Plan  of  Union,  is  their  own  congre- 
gation!  Thus  they  must  try  themselves,  if  they  are  tried  at  all! 
and  the  only  appeal  from  this  tribunal  is  to  the  Association  to  which 
they  belong.  But  perhaps  the  presbyteries  must  be  tried  for  admit- 
ting Congregational  delegates.  Until  the  Plan  of  Union  was  abro- 
gated, this  was  no  offence,  the  presbyteries  were,  by  the  existing 
laws,  bound  to  receive  these  delegates.  It  is  only  then  by  contin- 
uitig  to  admit  such  delegates,  after  the  abrogation  of  that  plan,  that 
they  would  become  obnoxious  to  censure;  in  other  words,  the  abro- 
o^ation  of  the  Plan  of  Union  made  it  necessary  for  the  presbyteries 
to  purify  themselves  of  Congregationalism,  and  this  is  substantially 
the  whole  efTect  of  these  disowning  acts.  The  entertaining  of  these 
Congregational  delegates  was  no  crime,  before  the  abrogation  of  the 
Plan  of  Union,  for  which  there  could  be  a  trial,  and  the  disowning 
acts  prevented  its  becoming  a  crime  thereafter.  The  General  As- 
sembly has  unquestionably  the  power  to  create  presbytenes  and 
synods;  as  to  the  latter,  it  is  expressly  given  by  the  constitution, 
and  as  to  the  former,  it  is  a  power  of  necessary  implication,  and 
has  been  repeatedly  exercised  without  question.  If  the  General 
Assembly  has  power  for  the  convenience  of  the  church,  to  erect 
presbyteries  and  synods,  she  has  necessarily  the  power  to  dissolve 
or  destroy  them,  when  the  like  convenience  requires  it.  Had  the 
General  Assembly  dissolved  those  synods  and  presbyteries,  and  de- 
clared the  churches  and  ministers  within  their  bounds  to  be  united 
to  the  adjacent  synods  and  presbyteries,  all  must  have  admitted  that 
this  was  a  constitutional  proceeding,  and  we  should  have  had  no 
clamour  of  disfranchisement  and  condemnation  without  hearing. 
How  does  our  proceeding  differ  from  this  ?  I  have  shown  that  we 
have  substantially  united  all  the  Presbyterian  churches  and  ministers 
to  the  adjacent  presbyteries,  we  have,  however,  excluded  the  Con- 
gregationalists;  in  this  consists  the  distinction,  if  there  be  any;  our 
right  to  exclude  them  rests  upon  the  unconstitutionality  of  the  Plan 
of  Union.  If  that  arrangement  was  unconstitutional  and  void,  the 
party  who  claims  the  benefit  of  it  is  not  to  be  tried  and  condemned 
for  his  unconstitutional  claim,  but  the  party  from  whom  is  sought 
performance  of  the  illegal  arrangement,  may  refuse  on  the  ground 
of  its  invalidity  and  unsoundness.  This  is  substantially  what  the 
General  Assembly  has  done. 


171 

It  were  a  waste  of  time  to  discuss  whether  the  powers  of  the 
General  Assembly  are  judicial  or  legislative.  She  here  acted  in  the 
mere  simple  and  uncomplicated  character  of  a  party  to  an  arrange- 
ment, called  upon  to  fulfil  that  arrangement,  but  declining  because 
the  arrangement  was  illegal  and  void.  These  acts  may  be  justified 
in  another  aspect.  The  General  Assembly  is  a  representative,  de- 
liberative body,  and  entitled  to  determine  upon  the  qualifications  of 
those  who  may  claim  membership.  This  is  not  only  the  general 
law  in  regard  to  such  bodies,  but  has  been  for  years  the  practice 
of  this  very  Assembly.  The  constituency  of  this  Assembly  is  pe- 
culiar: it  consists  not  of  natural  persons,  but  of  artificial  bodies. 
The  right  to  determine  claims  of  membership  involves  the  right  to 
decide  the  qualifications  of  the  electors,  and,  if  those  electors  be 
artificial  bodies,  to  ascertain  their  legal  organization.  When  these 
artificial  bodies  admit  into  their  structure  materials  of  an  unqualified 
and  vicious  nature,  may  not  the  Assembly  require  the  expurgation 
of  these  materials? 

The  Plan  of  Union  I  have  demonstrated  to  be  unconstitutional. 
It  is  sought,  however,  to  maintain  it,  and  supply  the  want  of  the 
jurisdiction  of  the  presbyteries  by  their  long  acquiescence.  An 
unconstitutional  statute  remaining  on  the  statute  book  unused  and 
inactive,  would  not  be  considered  as  acquiesced  in,  because  it  is 
not  repealed.  It  is  its  use  and  effects  that  may  be  the  subject  of 
acquiescence.  Before  this  presumption  arises,  it  must  be  shown, 
that  the  parties  acquiescing  were  aware  of  the  facts  and  events 
which  they  are  to  be  construed  to  have  approved.  These  Congre- 
gational Ciiurches  have  grown  up  insidiously  and  in  disguise,  and 
until  recently  were  unknown  to  the  great  majority  of  the  presbyte- 
ries. Under  such  circumstances  there  can  be  no  acquiescence. 
Had  these  churches  represented  themselves  in  the  statistical  reports 
which  they  presented  yearly  to  the  General  Assembly,  as  Congre- 
gational, we  should  have  yearly  acquiesced  ;  but  when  in  these  re- 
ports they  have  represented  themselves  to  be  Presbyterian  churches, 
we  can  only  be  construed  to  have  acquiesced,  by  being  construed 
to  have  disbelieved  them.  We  will,  however,  put  it  on  higher 
grounds;  the  incorporating  act  is  for  the  benefit  of  a  Presbyterian 
Church,  and  nothing  short  of  the  power  of  the  Legislature  can  make 
it,  in  whole,  or  in  part.  Congregational.  The  government  by  ruling 
elders,  according  to  the  faith  of  this  church,  is  of  apostolical  and 
divine  institution;  the  action  or  acquiescence  of  the  presbyteries 
may  change  the  constitutional  rides,  but  cannot  alter  the  essential 
doctrines  of  the  church,  which  claim  a  heavenly  origin. 

But  whatever  may  have  been  the  infirmity  of  these  proceedings 
in  1837,  they,  by  the  confession  of  our  adversaries,  did  not  destroy 
the  Assembly  of  that  year.  On  the  contrary,  it  continued  its  legal 
existence  up  to  the  last  hour  of  its  session,  when  it  was  regularly 
and  constitutionally  dissolved,  and  was  from  thenceforth  to  be  ac- 
counted with  things  that  were,  and  are  not.  For  by  the  constitution 
of  this  church,  the  General  Assembly  is  a  deciduous  body.  It  en- 
dures but  one  session,  and  the  General  Assembly  of  any  one  year 
is  not  a  continuation  of  the  General  Assembly  of  the  preceding  year, 


172 

but  a  new  and  independent  body.  The  succession,  the  principle  of 
identity  is  preserved  in  the  church  itself,  and  not  in  the  General 
Assembly.  Hence  at  the  end  of  its  session,  the  moderator  pro- 
nounces it  dissolved,  and  calls  another  for  the  ensuing  year,  and 
proclaims  the  time  and  place  at  which  such  ensuing  Assembly  shall 
meet. 

"Each  session  of  the  Assembly  shall  be  opened  and  closed  with 
prayer.  And  the  whole  business  of  the  Assembly  being  finished, 
and  the  vote  taken  for  dissolving  the  present  Assembly,  the  mode- 
rator shall  say  from  the  chair,  '  By  virtue  of  the  authority  delegated 
to  me,  by  the  Church,  let  this  General  Assembly  be  dissolved,  and 
I  do   hereby  dissolve   it,  and  require   another  General  Assembly, 

chosen  in  the  same  manner,  to  meet  at on  the day  of 

A.  D.'  "     Form  of  Governiuent,  Chap.  xii.  Sec.  viii. 

When,  therefore,  on  the  8th  day  of  June,  1837,  the  Assembly  of 
that  year  resolved : 

"  That  this  General  Assembly  be  dissolved ;  and  another  General 
Assembly,  chosen  in  like  manner,  be  required  to  meet  in  the  Seventh 
Presbyterian  Church,  in  the  city  of  Philadelphia,  on  the  third  Thurs- 
day of  May,  1838,  at  11  o'clo'ck,  A.  M.,"  and  "the  moderator  dis- 
solved the  Assembly  accordingly."  That  Assembly  ceased  to  exist 
for  good  or  ill,  and  the  Assembly  of  1S38  came  together  with  au- 
thority, powers,  and  faculties  unimpaired  by  any  acts  of  the  pre- 
ceding Assembly.  Particularly  in  the  matter  of  admitting  or 
rejecting  members,  and  deciding  on  their  qualifications,  &c.,  it  was 
bound  to  take  no  directions  from  the  preceding  Assembly.  The 
members  of  the  General  Assembly  of  1838  may  not  have  been,  and 
in  point  of  fact  many  of  them  had  not  been  members  of  the  Assem- 
bly of  1837.  You  will  presently  see,  gentlemen,  the  important  bear- 
ing of  these  considerations.  1  have  said  that  our  adversaries  have 
recognized  the  continued  legal  existence  of  the  Assembly  of  1837, 
down  to  the  last  day  of  its  session.  Among  the  many  proofs  of  this 
fact,  let  me  select  two.  The  New  School  organization,  if  organi- 
zation it  can  be  called,  commenced  with  Mr.  Cleaveland's  declara- 
tion. "We  have  been  advised  by  counsel  learned  in  the  law,  that 
a  constitutional  organization  of  the  Assembly  must  be  secured  at 
this  time  and  in  this  place."  Now  as  it  was  the  very  last  resolution 
of  the  General  Assembly  of  1837,  to  fix  that  time  and  place  for  the 
organization  of  the  Assembly  of  1838,  this  pi'oceeding  of  Mr.  Cleave- 
land  clearly  recognizes  the  capability  of  that  Assembly  to  do  legal 
and  valid  acts,  after  the  members  from  the  four  synods  were  ex- 
cluded. Again,  the  General  Assembly  of  1837,  after  disowning  the 
Synod  of  the  Western  Reserve,  elected  three  trustees  to  supply  va- 
cancies which  had  occurred  in  the  Board  of  Trustees.  Now  it  is 
manifest,  that  if  this  disowning  act  was  a  dismemberment  of  the 
church,  and  the  excluding  or  excision  of  a  material  part  of  the  cor- 
poration, then  this  decision  was  invalid.  The  members  so  excluded 
endeavoured  to  treat  it  in  that  light,  and  gave  notice  to  the  trustees 
not  to  recognise  any  orders  which  might  be  made  upon  them  by 
this  dismembered  Assembly  for  the  disbursement  of  money.  But 
the  New  School  Assembly  of  1838  thought  otherwise;  for  when  they 


173 

were  about  electing  the  relators  as  trustees,  they  expressly  declare 
that  there  were  no  vacancies  in  the  board.  A  declaration  which 
would  have  been  untrue,  had  the  Assembly  of  1837  been  incapable 
of  valid  action  after  the  supposed  dismemberment.  Nor  was  this 
a  mere  declaration,  for  by  the  standing  rules  it  is  provided  "When 
the  day  of  election  arrives,  the  Assembly  shall  ascertain  what  va- 
cancies in  the  number  of  the  eighteen  trustees  incorporated,  have 
taken  place  by  death  or  otherwise ;  and  shall  first  proceed  to  choose 
other  members  in  their  places."     Assembh/s  Digest,  page  199. 

The  declaration  of  the  New  School  Assembly  to  which  I  allude, 
is  in  these  words.  "  At  ten  o'clock  the  Assembly  proceeded  to  the 
order  of  the  day,  viz.  the  election  of  six  trustees  of  the  General  As- 
sembly. Messrs.  Bogue,  Brown,  and  Chapin,  were  appointed  to 
receive  the  ballots,  and  report  the  result.  The  Assembly  ascei'iained 
that  no  vacancies  in  the  Board  of  Trustees  have  occurred  by  death, 
or  otherwise.'"     New  School  Minutes  of  1838,  p.  654. 

T  have  taken  pains  to  prove  this  position  for  two  purposes;  first, 
to  show,  that  if  the  disowning  acts  were  unconstitutional  and  void, 
they  did  not  destroy  the  General  Assembly,  and  make  it  a  hareditas 
jacens,  into  which  any  straggler  might  enter  and  become  the  occu- 
pant: and,  secondly,  to  show  that,  as  the  organization  of  1837  con- 
tinued valid  after  the  removal  of  the  members  from  the  synods  in 
question,  so  the  Assembly  of  1838  might,  also,  be  validly  organized, 
upon  the  principle  of  their  exclusion. 

I  have  endeavoured  to  demonstrate,  that  the  General  Assembly 
of  1837  was  entirely  dissolved  at  the  close  of  its  session.  And  that 
the  Assembly  of  1838  was  a  new  and  independent  body,  for  the  ob- 
vious purpose  of  demonstrating  that  the  proceedings  of  1838  must 
stand  or  fall  by  their  own  intrinsic  merit  or  demerit,  and  can  derive 
neither  detriment  nor  aid  from  the  preceding  session,  except  so  far 
as  the  proceedings  of  any  anterior  year  form  a  precedent,  or  rule 
of  action,  to  be  respected  and  obeyed  by  the  ministerial  officer,  for 
the  time  being,  until  the  succeeding  Assembly  shall,  in  the  exercise 
of  its  free  and  unshackled  independence,  abolish  such  rules. 

Now,  let  us  examine  the  proceedings  of  1838.  The  relators  have 
brought  witness  after  witness,  to  prove  that  the  clerks  rejected  the 
members  from  the  four  synods;  that  Mr.  Patton  moved  to  have  their 
names  added  to  the  roll,  that  his  motion  was  declared  out  of  order; 
that  he  appealed,  that  his  appeal  was  declared  out  of  order;  that 
Dr.  Mason  made  a  motion  to  the  same  effect,  which  was  also  de- 
declared  out  of  order;  that  he  appealed,  and  his  appeal  was  de- 
clared to  be  out  of  order;  that  Mr.  JSquier  demanded  his  seat  in  the 
house,  and  that  his  demand  was  refused;  and  that  Mr.  Cleaveland 
rose,  and  declared,  as  the  reason  for  the  step  he  was  about  to  take, 
that  the  members  from  the  four  synods  had  heanrefused  their  scats, 
and,  then,  treating  the  chair  as  vacant,  moved  that  Dr.  Beman 
should  take  it;  that  this  motion  was  carried  by  the  acclamations  of 
their  partisans,  no  one  voting  in  the  negative,  and  also,  several  suc- 
ceeding motions,  by  which  a  complete  set  of  officers  were  created, 
and  the  virtue,  (as  they  maintain,)  entirely  extracted  from  the  old 
organization,  under  the  former  officers,  who  were  left  sitting  in 

15* 


174 

their  places,  holding  tiieir  barren  sceptres,  divested  of  all  real  au- 
thority. Now,  I  will  undertake  to  dennonstrate,  both  from  the 
relator's  testimony,  and  that  which  we  will  produce  on  our  side, 
that  the  whole  of  these  proceedings,  from  the  beginning  to  the  end, 
were  a  series  of  the  most  ridiculous  blunders.  That  these  gentle- 
men came  into  the  Assembly,  with  a  programme  of  conduct  to  be 
pursued,  but  that  the  exigency  which  they  anticipated  did  not  occur, 
and  yet  they  performed  their  premeditated  parts,  and  left  the  incon- 
gruities to  subsequent  explanation. 

By  the  constitution  of  this  church,  the  presiding  officer,  called 
the  moderator,  and  the  clerks  of  the  preceding  Assembly,  act  as 
the  officers  of  the  succeeding  Assembly,  until  it  is  organized,  and 
chooses  officers  of  its  own.  Previously  to  the  year  1826,  after  the 
moderator  had  made  his  opening  prayer,  the  commissioners  pre- 
sented their  commissions  to  the  clerks,  who  read  them  publicly, 
and  then  enrolled  them.  And,  until  such  reading  and  enrolment, 
the  commissioners  had  no  right  to  sit,  speak  or  vote  as  members  of 
the  Assembly.  In  that  year,  an  amendment  to  the  constitution  was 
originated,  which  afterwards  received  the  sanction  of  the  presby- 
teries, by  which  the  commissions,  instead  of  being  publicly  read, 
were  to  be  examined  merely,  and  certain  standing  rules  were 
adopted,  regulating  the  manner  and  process  of  this  examination. 
They  are  in  these  words: 

"  1.  Immediately  after  each  Assembly  is  constituted  with  prayer, 
the  moderator  shall  appoint  a  committee  of  commissions. 

2.  The  commissions  shall  then  be  called  for  and  delivered  to  the 
committee  of  commissions,  and  the  person  delivering  each,  shall 
state  whether  the  principal  or  alternate  is  present. 

3.  After  the  delivery  of  the  commissions,  the  Assembly  shall  have 
a  recess  until  such  an  hour  in  the  afternoon  as  will  afford  sufficient 
time  to  the  committee  to  examine  the  commissions. 

4.  That  the  committee  of  commissions  shall,  in  the  afternoon, 
report  the  names  of  all  whose  commissions  shall  appear  to  be  re- 
gular and  constitutional,  and  the  persons  whose  names  shall  be 
thus  reported,  shall  immediately  take  their  seats  and  proceed  to 
business. 

5.  The  first  act  of  the  Assembly,  when  thus  ready  for  business, 
shall  be  the  appointment  of  a  committee  of  elections,  whose  duty  it 
shall  be  to  examine  all  informal  and  unconstitutional  comtnissions, 
and  report  on  the  same  as  soon  as  practicable." 

Subsequently  the  stated  and  permanent  clerks  were  appointed  to 
be  a  standing  committee  of  commissions,  under  the  foregoing  rules. 
And  the  commissioners  were  directed  to  present  their  commissions 
to  this  committee,  before  the  commencement  of  the  session  in  the 
morning,  and  the  committee  were  thus  enabled  to  make  up  their 
report  for  the  morning  session. 

I  will  now  read  to  you  the  only  constitutional  provision  which 
bears  upon  this  subject,  and  then  we  shall  be  prepared  to  measure 
the  conduct  of  our  adversaries  by  these  standards. 

"No  commissioner  shall  have  a  right  to  deliberate  or  vote  in  this 
Assembly,  until  his  name  shall  have  been  enrolled  by  the  clerk ;  and 


175 

his  commission  examined  and  filed  among  the  papers  of  the  As- 
sembly."    Form  of  Government,  cliap.  xii,  sec.  7. 

JNow  it  appears  that  the  commissioners  from  the  four  synods 
presented  their  commissions  to  the  committee  of  commissions,  who 
had  the  power,  by  the  4th  of  the  above  rules,  to  reject  them,  if  they 
did  not  deem  them  constitutional.  They,  though  by  no  means 
bound  by  the  proceedings  of  1837,  except  as  a  precedent,  (it  being 
the  opinion  of  the  highest  tribunals  of  the  church  on  the  constitu- 
tionality of  these  commissions,)  reject  them  as  unconstitutional 
Notwithstanding  they  were  at  Hberty  to  decide  otherwise,  they 
gave  this  judgment,  and  being  a  competent  tribunal,  their  decision 
could  only  be  reversed  by  the  General  Assembly,  according  to  a 
system  provided  by  these  rules.  The  General  Assembly  confides 
this  review  to  a  committee  of  elections,  and  it  is  the  first  business 
of  the  Assembly  to  appoint  this  committee.  Now  you  will  observe 
that  the  committee  of  commissions  are  only  bound  to  put  the  names 
of  such,  as  in  their  judgment,  have  regular  and  constitutional  com- 
missions on  the  roll,  the  others  they  simply  reject,  and  they  must 
be  brought  before  the  house,  like  other  business,  by  the  motion  of 
some  member,  and  the  moderator  will  refer  the  same  to  the  com- 
mittee of  elections  as  soon  as  that  committee  is  appointed.  We 
shall  show  you  that  the  committee  of  commissions  advised  them 
thus  to  apply  to  the  house.  A  practice  has  sprung  up  of  reporting 
irregular  commissions  in  a  separate  roll  and  thus  to  bring  them  to 
the  notice  of  the  house  which  refers  them  to  the  committee  of  elec- 
tions, but  this,  you  will  observe,  is  no  part  of  these  rules,  and  is  a 
mere  practice  of  convenience  adopted  by  the  clerks.  We  shall 
prove  to  you  that  the  clerks  debated  between  themselves  the  point 
whether  these  rejected  commissioners  ought  to  be  presented  to  the 
house  by  them,  or  whether  they  should  be  presented  by  some  mem- 
ber. The  latter  opinion,  which  is  a  strict  adherence  to  the  rule,, 
prevailed.  Now  here  let  us  pause  and  inquire  whether  these  clerks 
have  committed  any  breach  of  duty.  To  them  is  referred,  bv  the 
standing  rules  of  the  house,  the  question  of  the  constitutionality  of 
all  commissions  which  are  presented  to  them.  They  may  make  a 
weak  or  erroneous  judgment,  but  that  is  no  crime!  Were  they  in- 
fluenced or  aftected  by  the  disowning  acts  of  1837?  It  is  most 
likely  that  they  were;  is  that  a  crime?  That  those  disowning  acts 
deprived  them  of  the  exercise  of  their  judgment  we  deny,  but  we 
would  have  considered  it  the  height  of  arrogance  had  those  officers 
disregarded  the  opinion  of  the  highest  tribunal  in  the  church;  it 
was  but  a  decent  respect  to  the  majority  of  that  body  to  submit 
the  correction  of  their  errors,  if  there  were  errors,  to  the  judgment 
of  the  house.  On  this  act  of  the  clerks  our  adversaries  base  the 
right  to  remove  them,  which,  they  say,  they  subsequently  exercised. 
The  right  to  remove  the  moderator,  they  attempt  to  deduce  also 
from  his  misconduct  (as  they  call  it)  in  his  treatment  of  Patton, 
Mason  and  Squier.  Now  what  is  the  real  account  of  this  matter, 
both  as  the  relators  have  shown  it  upon  their  testimony,  and  as  we 
shall  more  fully  develope  it  in  ours'^.  And  first,  immediately  after 
the  moderator,  Dr.  Elliott,  had  opened  the  Assembly  with  prayer, 


176 

Mr.  Patton  rose  and  said  he  had  certain  resolutions  in  his  hand 
which  he  wished  to  offer.  He  did  not  read  the  resolutions,  and  the 
moderator  was  entirely  ignorant  of  their  contents.  His  decision, 
therefore,  cannot  be  ascribed  to  any  opposition  to  their  matter.  He 
decided  that  they  (and  so  would  have  been  his  decision  as  to  any 
other  resolution)  were  out  of  order,  as  the  first  business  was  the 
formation  of  the  roll.  The  propriety  of  tiiis  decision  no  one  in  his 
senses  can  doubt.  The  rules  of  1826,  which  I  have  read  to  you  as 
they  originally  stood,  consider  the  house  so  absolutely  inane  and  in- 
capable before  the  roll  is  reported,  that  they  direct  it  to  be  adjourned 
from  the  time  the  commissions  are  committed  to  the  clerks,  until  they 
are  ready  to  report.  And  the  constitution  itself  provides,  that  no 
member  shall  be  allowed  to  deliberate  or  vote  until  he  is  enrolled. 
Until,  therefore,  the  roll  is  reported,  as  no  one  is  entitled  either  to 
deliberate  or  vote,  who  is  there  to  entertain  a  motion?  Mr.  Patton, 
after  committing  this  solecism,  still  persisted  and  thereby  betrayed 
a  remarkable  unacquaintance,  in  himself  and  the  party  whose  organ 
he  was,  of  the  structure  of  this  body.  He  appealed  from  this  just 
decision.  To  whom  did  he  appeal?  The  appeal  must  be  to  some 
persons  who  can  deliberate  and  vote  upon  that  appeal.  But  the 
roll  not  being  reported,  there  were  none  entitled  to  deliberate  and 
vote;  in  other  words  there  was  no  house  to  which  the  appeal  could 
be  made.  The  moderator,  properly,  therefore,  declared  that  ap- 
peal out  of  order.  Mr.  Patton  took  his  seat  and  acquiesced  in  the 
decision.  The  roll  was  then  reported,  and  thereupon,  the  mode- 
rator made  a  proclamation  or  call  for  any  commissions  which  had 
not  been  presented  to  the  clerks,  and  stated  if  there  were  any  such, 
now  was  the  time  to  present  them.  A  usual  formula  and  a  rem- 
nant of  the  original  practice  under  the  rules  of  1826. 

Rule  II. — "  The  commissions  shall  then  be  called  for,  and  deliver- 
ed to  the  Committee  of  (^Commissions." 

This  practice  was  subsequently  modified,  as  you  have  already 
learned,  by  delivering  the  commissions  to  the  clerks,  composing  the 
Committee  of  Commissions,  before  the  meeting  of  the  General  As- 
sembly: but  it  was  deemed  judicious  to  retain  the  old  practice  of 
calling  for  commissions  at  the  opening  of  the  Assembly,  lest  some 
from  inadvertence,  misapprehension,  or  want  of  opportunity,  should 
not  have  presented  their  commissions  to  the  clerks.  Although  the 
clerks  have  read  the  roll,  yet  the  roll  is  not  completed,  and  the  house 
ascertained,  until  this  proclamation  has  been  made,  and  a  reason- 
able opportunity  given  to  assent  to  it.  The  essential  nature  of  this 
proclamation  to  the  well  ordering  of  the  house,  even  in  the  opinion 
of  our  adversaries,  is  made  manifest,  by  the  fact,  that  the  first  act, 
performed  by  the  New  School  moderator,  after  he  was  installed, 
was  to  make  this  very  proclamation.  While  this  call,  by  Dr.  Elliott, 
was  pending,  and  one  commissioner,  at  least,  was  coming  forward 
to  avail  himself  of  it.  Dr.  Mason  rose,  and  disregarding  the  busi- 
ness which  already  possessed  the  house — (for  he  did  not  pretend 
that  his  application  was  responsive  to  that  call) — disregarding  that 
standing  rule  of  order,  which  provides  that  the  very  first  business 
of  the  house  shall  be  the  appointment  of  a  Committee  of  Elections, 


177 

he  moves  that  the  names  of  certain  commissioners,  whose  commis- 
sions had  been  presented  to  the  clerks,  and  rejected  by  them,  sliould 
be  added  to  the  roll.  Notwithstanding  the  manifest  disorderly  na- 
ture of  this  motion,  the  moderator.  Dr.  Elliott,  acted  with  great 
moderation  and  composure.  Instead  of  absolutely,  and  at  once 
declaring  the  motion  out  of  order,  as  he  had  reason  to  suspect,  that 
the  commissions  so  offered  were  from  the  disowned  synods,  he  in- 
quired, and  ascertained  that  fact,  and  then  carefully  qualifies  his 
rejection  of  the  motion,  by  saying,  it  is  out  of  order,  at  this  time. 
That  the  rejection  of  the  motion  might  not  be  construed  into  a  re- 
jection of  the  men,  he  carefully  qualifies  it,  so  as  to  show  that  the 
order  only  of  the  motion  was  objectionable,  and  that  the  time  would 
come,  when  it  would  be  receivable. 

Here  let  me  interrupt  the  flow  of  events,  to  state,  that  it  is  mani- 
fest that  it  was  not  the  intention  of  the  officers  to  exclude  these 
commissioners  from  access  to  the  decision  of  the  house,  in  this  case. 
The  clerks  told  them  to  apply  to  the  Assembly.  The  moderator 
told  Dr.  Mason  that  a  time  would  come  for  their  presentation.  And 
there  cannot  be  a  reasonable  doubt,  that  if  presented  to  the  house, 
after  the  appointment  of  a  Committee  of  Elections,  they  would 
have  been  referred  to  that  committee;  and  such  of  them  as  could 
have  demonstrated  that  they  came  from  pure  presbyteries,  would 
have  been  admitted  to  their  seats;  there  would  have  been  no  pre- 
tence to  exclude  them.  Even  the  disowning  acts  invite  such  to 
come  to  the  Assembly  of  1838,  and  take  their  seats.  As  to  those 
whose  primary  constituency  were  Congregational  churches,  they 
would  have  had  their  case  decided  on  by  a  majority  of  the  house, 
entirely  uncontrolled,  and  unshackled,  by  the  proceedings  of  1837; 
and  if  the  conjectures  of  Mr.  Phelps,  one  of  the  relators'  witnesses^ 
which  you  have  heard  given  in  evidence,  be  right,  then  the  majority 
would  have  admitted  them.  For  he  assures  us,  that  many  Old 
School  members  would  have  voted  for  their  admission,  so  as  to 
make  a  majority  in  their  favour.  But  to  return  to  Dr.  Mason  :  not 
abashed  by  the  impropriety  of  his  motion,  he  appealed,  and  the 
moderator  refused  to  put  that  appeal.  Here  is  the  very  head  and 
front  of  our  offending.  The  motion  may  have  been  wrong;  at  all 
events,  the  moderator  was  constitutionally  authorized  to  decide  it 
to  be  wrong,  but  the  refusal  to  put  the  appeal,  was,  say  they,  an 
usurpation,  an  act  of  tyranny,  and  breach  of  privilege !  That  an 
appeal  may  be  out  of  order,  will  not  be  denied.  For  instance,  an 
appeal  must  be  made  immediately,  upon  the  decision  complained 
of;  if  other  business  is  allowed  to  intervene,  the  right  of  appeal  is 
gone,  and  he  who  should  attempt  to  make  an  appeal  under  such 
circumstances,  would  have  it  rejected  by  the  moderator.  If  there 
be  one  such  case,  there  may  be  others ;  and  no  stronger  case  than 
the  one  I  am  discussing,  could  be  suggested :  for,  by  putting  the 
appeal,  in  order  to  avoid  the  violation  of  Dr.  Mason's  privilege,  he 
would  have  violated  the  privilege  of  others.  The  roll  was  in  the 
process  of  being  completed ;  a  call  had  been  made  for  persons  who 
were  present  with  commissions,  to  come  forward  and  qualify  them- 
selves for  voting,  by  being  enrolled.     The  physical  performance  of 


178 

this  act  required  some  lapse  of  time.  We  are  informed  by  the  evi- 
dence, that  there  was  one  commissioner,  Joshua  Moore,  who  was 
in  the  act  of  avaihng  himself  of  the  moderator's  invitation,  when 
Dr.  Mason  rose.  Had  there  been  fifty  in  that  predicament,  some 
time  must  have  elapsed  before  the  last,  in  the  succession  of  fifty, 
(for  the  enrolling  must  be  done  successively,)  could  have  been 
qualified  to  vote.  Might  not  such  fiftieth  commissioner,  or  even 
Joshua  Moore,  if  he  stood  alone,  have  said,  "  Submit  no  question 
to  the  house,  until  I  am  qualified  to  participate  in  the  same.  The 
roll  is  not  yet  complete."  And  such  was  the  principle  of  the  re- 
jection of  the  appeal;  the  roll  was  not  yet  complete,  and  the  house 
had  not  yet  been  ascertained.  The  clerks  had  reported  such  as 
had  presented  their  commissions,  and  whom  they  deemed  entitled 
to  seats:  the  moderator  was  about  adding  to  them,  by  his  procla- 
mation, such  as  had  unquestioned  commissions,  but  had  not  availed 
themselves  of  the  previous  opportunity. 

But  suppose  this  honest,  well  meant  decision,  was  erroneous,  and 
a  breach  of  privilege,  what  flowed  from  it  ?  We  understand  that 
Dr.  Mason  acquiesced  in  it:  he  sat  down  without  complaint,  and 
another  application  to  the  moderator  from  one  of  their  own  party 
(Squier)  followed.  This  question  of  the  breach  of  privilege  is  en- 
tirely an  after  thought.  The  subsequent  proceedings  of  Mr.  Cleave- 
land  are  so  plainly  opposed  to  numerous  rules  of  the  house,  and  the 
principles  which  govern  every  deliberative  body,  that  our  adversaries 
are  constrained  to  seek  some  extraordinary  justification  for  this  ex- 
traordinary conduct ;  and  they  think  they  have  found  it  in  this  sup- 
posed breach  of  Dr.  Mason's  privilege.  But  1  will  presently  show 
you  that  none  of  the  ulterior  proceedings  had  any  connexion  with 
this  supposed  breach  of  privilege.  But  there  is,  however,  an  inter- 
mediation between  Dr.  Mason  and  Mr.  Cleaveland,  which  must  first 
be  explained.  Mr.  Squier  rose  and  demanded  his  seat  in  the  house. 
The  moderator  had  now  official  notice,  that  the  four  synods  had 
been  excluded  from  the  roll;  for  the  roll  had  been  read.  He  there- 
fore inquired,  if  he,  Mr.  Squier,  belonged  to  those  synods,  and 
having  ascertained  that  he  did,  told  him  that  he  did  not  know  him, 
that  is,  no  one  had  a  right  to  address  that  house  but  enrolled  mem- 
bers, and  that  its  officers  could  not  recognize  any  others.  This 
reason,  you  must  be  satisfied  by  this  time,  was  conclusive;  and  so 
Mr.  Squier  thought,  for  he  did  not  attempt  to  appeal.  Mr.  Squier 
should,  upon  every  principle  of  order,  have  asked  some  enrolled 
member  to  present  his  application. 

Up  to  this  time,  gentlemen,  it  is  manifest  that  the  General  Assem- 
bly of  1838  had  rejected  no  appplicant  for  the  rights  of  member- 
ship. If,  assuming  the  unconstitutionality  of  the  disowning  acts, 
there  had  been  fault  or  misconduct  in  attempting  to  enforce  them, 
that  fault  or  misconduct  was  entirely  in  the  clerks.  The  moderator 
had  certainly  done  nothing  but  to  enforce  the  rules  of  order.  But, 
supposing,  for  the  sake  of  the  argument,  that  he  had,  by  his  con- 
duct, been  endeavouring  to  carry  out  these  acts,  no  sanction  had 
been  given  by  the  house  to  this  conduct,  or  the  conduct  of  the 
clerks. 


'  179 

The  New  School  party  had  convened  in  caucus  before  the  meet- 
ing of  the  General  Assembly,  and  liad  resolved, 

"  That  should  a  portion  of  the  commissioners  to  the  next  General 
Assembly  attempt  to  organize  the  Assembly  without  admitting  to 
their  seats  commissioners  from  all  the  presbyteries  recognized  in  the 
organization  of  the  General  Assembly  of  1837,  it  will  then  be  the 
duty  of  the  commissioners  present,  to  organize  the  General  Assem- 
bly of  1838,  in  all  respects  according  to  the  constitution,  and  to 
transact  all  other  necessary  business  consequent  upon  such  organi- 
zation." 

Now  this  furnishes  a  key  to  their  whole  proceedings.  "  Should 
a  portion  of  the  commissioners  to  the  next  General  Assembly  at- 
tempt to  organize,"  &c.,  a  portion,  no  matter  whether  that  portion 
were  great  or  small,  the  majority  or  the  minority,  "It  will  then  be 
the  duty  of  the  commissioners  present  to  organize  in  all  respects 
according  to  the  constitution,"  says  the  resolution.  That  is  the 
commissioners,  other  than  these  included  in  the  portion,  will  oro^a- 
nize,  admitting  the  commissioners  attempted  to  be  excluded  by  the 
portion.  In  other  w^ords,  should  the  portion  be  the  majority,  the 
minority  will  organize  according  to  their  notions  of  the  constitution, 
and  claim  to  be  the  true  house.  This  was  the  design  of  our  adver- 
saries; and  when  the  clerks  rejected  the  commissioners  from  the 
four  synods,  the  attempts  of  Messrs.  Patton,  Mason,  and  Squier, 
were  made  for  the  purpose  of  forcing  the  house,  or  the  portion  or 
majority  of  the  house,  into  a  concurrence  in  that  rejection,  which 
would  establish  the  postulate,  this  resolution  and  plan  of  action  had 
assumed.  But  owing  to  the  remarkable  unacquaintance  of  these 
gentlemen,  with  the  rules  of  the  house,  they  made  their  attempts  at 
improper  periods  of  time,  and  therefore  were  prevented  from  ob- 
taining the  vote  of  the  house  on  these  rejections.  They  however 
dashed  on  in  the  career  which  they  had  prescribed  for  themselves. 
Mr.  Cleaveland  rose  and  read  a  paper  which  he  had  prepared,  in 
accordance  with  the  resolution  of  the  caucus,  which  paper  stated 
"  that  as  the  commissioners  to  the  General  Assembly  of  1838,  from 
a  large  number  of  presbyteries  had  been  refused  their  seats  ;  and  as 
we  had  been  advised  by  counsel  learned  in  the  law,  that  a  constitu- 
tional organization  of  the  Assembly  must  be  secured  at  this  time  and 
in  this  place,  he  trusted  it  would  not  be  considered  as  an  act  of  dis- 
courtesy, but  merely  as  a  matter  of  necessity,  if  ice  proceed  to  or- 
ganize the  General  Assembly  for  1838,  in  the  fewest  words,  the 
shortest  time,  and  with  the  least  interruption  practicable."  He  then 
moved  that  Dr.  Beman  be  the  moderator  to  preside  till  a  new  mo- 
derator be  chosen.  Now  you  will  observe,  that  not  a  word  is  said 
about  a  breach  of  privilege  by  the  moderator,  in  refusing  to  put  \}r. 
Mason's  appeal  to  the  house,  not  a  word  about  removing  him  for 
misconduct,  but  Mr.  Cleaveland's  motion  is  founded  altogether  on 
the  assumed  fact,  that  certain  commissioners  had  been  refused  their 
seats.  It  is  true  that  the  clerks  had  refused  to  enrol  them,  but  nei- 
ther the  house  nor  any  portion  of  the  commissioners,  had  sanctioned 
that  act.  The  exigency,  contemplated  in  the  caucus  resolution, 
had  not  therefore  arisen.     Mr.  Cleaveland's  motion  was,  in  conse- 


180 

quence,  based  solely  upon  the  acts  of  the  clerks,  which  could  only 
be  properly  reviewed  by  an  appeal  to  the  house,  but  which  he  un- 
dertook to  review  in  another  method,  that  is,  by  considering  them 
and  the  moderator  as  nonentities,  and  by  organizing  the  Assembly 
anew  from  its  original  elements.  His  motion,  to  put  Dr.  Beman  in 
the  chair,  was  received  with  loud  shouts  of  "  Aye  !"  from  their  par- 
tisans. They  appointed  clerks,  and  a  permanent  moderator,  in  the 
same  way,  and  adjourned  to  the  First  Church,  where  they  sat,  as- 
suming to  be  the  General  Assembly,  and  elected  the  relators  as 
trustees.  When  they  had  time  to  cool,  they  saw  that  they  had  not 
accomplished  their  design;  that  upon  their  own  principles,  no  por- 
tion of  the  house  had  rejected  the  commissioners  in  question  ;  that 
they  had  punished  the  majority,  for  the  fault  of  the  clerks,  without 
giving  that  majority  an  opportunity  of  reviewing  and  correcting  the 
decision  of  the  clerks.  They  would,  therefore,  have  been  put  to 
that  shame,  which  is  always  the  punishment  of  unsuccessful  rash- 
ness, had  it  not  been  for  one  bright  thought!  Before  I  introduce 
this  to  your  acquaintance,  let  me  call  your  attention  again  to  the 
caucus  resolution.  They  resolved  in  effect,  that  should  a  portion 
of  the  commissioners  attempt  to  organize,  omitting  the  members 
from  the  four  synods,  that  they,  our  adversaries,  would  organize, 
admitting  them.  Now,  it  is  manifest,  that  if  this  portion  were  the 
majority,  and  should  vote  upon  the  questions  put  by  these  self-styled 
constitutional  organizers,  they  would  vote  them  down,  and  thus 
defeat  their  intended  constitutional  organization.  It  is,  therefore, 
necessarily  involved  in  this  resolution,  that  these  sticklers  for  our 
constitution  would  treat  the  interference  of  the  portion,  that  is,  the 
majority,  by  vote  or  otherwise,  in  their  attempt  at  constitutional 
organization,  with  entire  inattention  and  disregard.  Well  might 
one  of  the  members  of  this  caucus  (as  you  ha  ve  it  in  proof)  exclaim 
upon  the  adoption  of  this  i*esolution,  "  we  have  passed  the  Rubicon." 

We  asked  the  witnesses  of  this  party  what  they  would  have  done, 
had  the  Old  School  majority,  (a  clear,  confessed,  undoubted  ma- 
jority) voted  in  the  negative  on  Mr.  Cleaveland's  motion?  The 
relators'  counsel  instantly  objected  to  the  question,  and  the  Court 
sustained  the  objection.  We  have  not,  therefore,  the  benefit  of  an 
answer,  but  if  you  examine  the  caucus  resolution  on  •which  Mr. 
Cleaveland's  motion  was  based,  you  will  be  convinced  that  they 
would  not  have  regarded  any^jegative  vote  from  the  Old  School 
party.  In  other  words,  the  motion  was  addressed  to  the  New 
School  party,  and  as  they  were  pledged  to  vote  affirmatively,  they 
could  easily  be  distinguished. 

But  the  Old  School  party  put  them  to  no  such  strait;  they  sat  in- 
dignantly silent,  or  only  opened  their  mouths  to  cry  order.  And  it 
is  upon  this  conduct  that  the  bright  thought  is  formed  which  has 
given  our  adversaries  a  topic  for  their  sophistry.  The  30th  of  the 
general  rules  for  judicatories  provides: 

"  Silent  members,  unless  excused  from  voting,  must  be  considered 
as  acquiescing  with  the  majority." 

The  position  of  our  adversaries  now  is,  that  the  moderator  com- 
mitted a  breach  of  privilege  by  refusing  to  put  Dr.  Mason's  appeal, 


181 

he  thereby  forfeited  his  office,  and  any  member  had  a  right  to  move 
the  house  for  his  displacement.  That  Mr.  Cleaveland's  motion  was 
such  in  substance,  and  as  the  silent  members  are  to  be  accounted 
to  have  voted  affirmatively,  that  motion  was  carried  by  an  unani- 
mous vote  of  the  house.  They  make  no  complaint  of  the  Old  School 
party  in  the  house,  but  the  offence  was  entirely  the  moderator's, 
committed  against  the  whole  house,  and  the  whole  house  joined  in 
punishing  him. 

These  new  positions  are  infinitely  more  infirm,  when  duly  con- 
sidered, than  those  which  preceded  them.  They  are,  moreover, 
censurable  as  disingenuous.  It  is  stealing  a  march  upon,  and  out- 
generaling us;  a  species  of  strategy,  licensable  in  war,  but  not  to 
be  practised  by  the  grave  ministers  of  a  Christian  church. 

It  would  exhaust  your  patience,  to  enumerate  the  fatal  objections 
to  these  positions.     Let  a  few  suffice. 

The  intendment  that  he,  who  sits  silent,  votes  in  the  affirmative, 
can  only  arise,  when  the  question  is  properly  and  legally  proposed. 
No  man  is  bound  to  treat  a  disorderly  motion  otherwise  than  as  a 
disorder. 

Now,  here  was  a  motion  proposed  confessedly  under  the  most 
extraordinary  circumstances,  and  he  who  relies  upon  its  efficacy, 
must  prove  it  to  have  been  strictly  legal. 

The  first  objection  which  I  shall  take  to  it,  is,  that  it  was  in  direct 
opposition  to  the  stated  business  of  the  house.  The  standing  rules 
of  1826,  providing,  that  the  first  business  which  the  house  shall 
transact,  after  the  report  on  the  roll,  shall  be  the  appointment  of  a 
committee  of  elections,  to  whom  shall  be  referred  the  commissions 
rejected  by  the  clerks  or  committee  of  commissions.  A  standing 
rule,  intimately  connected  with  the  privileges  of  the  members;  for 
while  the  appointment  of  this  committee  is  suspended,  members  en- 
titled to  seats,  through  the  action  of  that  committee,  are  deprived 
of  their  privileges  as  members. 

To  this,  a  feeble  answer  is  returned,  that  the  refusal  of  Dr.  Mason's 
appeal  was  a  breach  of  privilege,  and  questions  of  privilege  are 
always  in  order.  I  trust  I  have  demonstrated,  that  the  rejection  of 
that  appeal  was  rightful.  But  Jet  us  assume,  for  the  argument's 
sake,  that  it  was  a  breach  of  privilege.  Did  it  justify  Mr.  Cleave- 
land's proceeding  ?  There  was  no  connexion  between  the  two.  Dr. 
Mason  had  a  right,  and  perhaps  another  for  him,  to  bring  his  ques- 
tion of  privilege,  immediately,  and  distinctly  before  the  house,  and 
obtain  his  redress,  even  by  the  expulsion  of  the  offending  officer. 
If  so  brought  forward,  it  would  have  been  intelligible,  and  all  would 
have  voted  advisedly;  but  it  did  not  entitle  him,  or  any  other  for 
him,  to  bring  a  foreign  matter,  out  of  its  order,  before  the  house. 
Did  Mr.  Cleaveland  bring  this  question  of  privilege  before  the 
house  ?  What  was  the  grievance  that  he  alleged  to  be  the  cause 
and  justification  of  this  truly  extraordinary  motion?  We  have  his 
very  words,  ''That  as  the  commissioners  from  a  large  number  of 
presbyteries  had  been  refused  their  seats,"  &c.  On  this  account, 
and  for  this  reason,  and  to  redress  this  injury,  he  made  his  motion. 
Was  there  the  slightest  intimation  from  which  any  member  of  that 
16 


182 

house,  who  had  seen  Dr.  Mason  take  his  seat  quietly ;  who  had 
seen  Mr.  Squier,  a  gentleman  in  the  same  connexion  of  party  and 
counsels,  intervene,  and  introduce  another  matter — I  say,  was  there 
any  intimation  to  such  member  in  Mr.  Cleaveland's  motion,  written 
and  prepared  with  a  formal  preface,  before  he  had  come  to  the 
house,  and,  of  course,  before  Dr.  Mason's  appeal  had  been  rejected, 
and  before  it  could  be  known  that  it  would  be  rejected,  except  by 
the  spirit  of  prophecy,  that  his  motion  was  intended  as  a  measure 
of  penal  visitation,  for  the  rejection  of  that  appeal? 

The  form  of  government  prescribes,  *'  That  the  moderator  is  to 
propose  to  the  judicatory  every  subject  of  deliberation  that  comes 
before  them."  "  He  shall,  at  a  proper  season,  when  the  delibera- 
tions are  ended,  put  the  question  and  call  the  votes."  "  In  all  ques- 
tions, he  shall  give  a  concise  and  clear  statement  of  the  object  of  the 
vote ;  and  the  vote  being  taken,  shall  then  declare  how  the  question 
is  decided."  Chap.  xix.Sec.  11.  Now  Mr  Cleaveland's  proceedings 
were  a  violation  of  every  one  of  these  constitutional  provisions. 
An  individual  rises  in  the  rear  of  the  members'  seats,  makes  a  mo- 
tion which  he  does  not  address  to  the  moderator,  assumes  the  office 
of  moderator,  and  puts  the  question  himself,  the  real  incumbent  of 
the  office  of  moderator  still  holding  the  seat  of  office,  and  up  to  that 
moment  acknowledged  by  all  parties  to  be  the  real  moderator. 
Nay,  the  first  part  of  Mr.  Cleaveland's  preface  being  addressed  to 
him,  for  he  commenced  by  saying,  "Mr.  Moderator,"  but  afterwards 
turned  from  him,  and  addressedhimself  to  the  audience.  This  indi- 
vidual, under  these  circumstances,  and  under  calls  to  order  from  the 
moderator,  proposes  a  question  himself,  and  calls  for  votes,  and 
declares  the  result.  The  whole  of  this  proceeding,  thus  suddenly 
and  unexpectedly  started,  is  completed  in  the  lapse  of  a  few  seconds; 
and  yet  it  is  seriously  contended,  that  the  majority,  whom  it  is 
conceded  were  opposed  to  the  measure,  by  this  silence  legally  con- 
curred in  the  measure ;  and  it  is  to  be  accounted  as  passed  by  their 
votes.  The  party  who  resorted  to  this  proceeding  were  prepared 
and  drilled;  they  not  only  understood  what  was  to  be  done,  but 
who  was  to  do  it.  To  their  adversaries,  it  was  all  surprise;  and, 
as  one  of  the  relators'  witnesses  has  expressed  it,  they  sat  in  amaze- 
ment. Can  such  silence  be  acquiescence?  But  if  they  did  under- 
stand the  matter,  were  they  bound  to  vote  upon  a  motion  not  put 
by  the  constitutional  organ  to  the  house?  Our  adversaries'  answer 
to  this,  is,  that  it  was  a  question  for  his  own  removal,  and  therefore 
it  would  be  improper  to  require  him  to  put  it  to  the  house.  Should 
we  concede  this  position,  still  Mr.  Cleaveland  was  not  the  proper 
person  to  put  the  question  :  the  practice  of  this  body,  and  the  estab- 
lished parliamentary  usage  has  settled,  that  should  any  question 
arise  touching  the  moderator,  speaker,  or  chairman,  or  whatever 
else  may  be  the  designation  of  the  presiding  officer,  the  motion  must 
be  put  to  the  house  by  the  clej^k,  and  no  man  is  bound  to  notice  a 
motion  put  otherwise.  But  to  this  our  adversaries  answer,  thai  the 
clerks  were  as  deep  in  fault  as  the  moderator,  and  would  not  have  put 
the  motion.  Were  they  asked  to  do  it?  It  does  not  appear  that  they 
would  have  refused,  a  sense  of  duty  often,  for  the  honour  of  our 


183 

race,  overcomes  individual  predilections.  I  am  speaking,  now,  the 
language  of  our  adversaries,  and  assuming  that  right  and  duty  is  on 
their  side.  If  Mr.  Cleaveland  had  stated  his  motion,  and  requested 
the  clerks  to  propose  it  to  the  house,  and  they  had  refused,  the  house 
would  then  have  fully  understood  its  purpose,  and  been  prepared  to 
vote  upon  it,  when,  as  a  dernier  resort,  Mr.  Cleaveland  proposed  it 
himself.  As  regards  the  moderator,  they  assert  that  the  question 
pertained  to  his  own  removal,  and  that  it  would  have  been  absurd 
to  require  him  to  put  it  to  the  house.  Without  acquiescing  in  the 
logic  of  this  position,  we  say,  that  this  reason,  good  or  bad,  did  not 
apply  to  the  clerks,  whose  removal  the  question  did  not  agitate. 

But  this  question  was  not  only  proposed  unconstitutionally,  by  an 
improper  person,  but  the  subject  matter  was  improper ;  it  being  to 
call  Dr.  Beman  to  the  office  of  moderator ;  for  a  rule  of  order  pro- 
vides, "  If  a  quorum  be  assembled  at  the  hour  appointed,  and  the 
moderator  be  absent,  the  last  moderator  present  shall  be  requested 
to  take  his  place  without  delay." 

Now  it  is  in  proof,  that  there  were  present  at  the  time  of  Mr. 
Cleaveland's  motion,  three  gentlemen  who  had  held  the  office  sub- 
sequent to  Dr.  Beman.  This  gentleman  had  already  once  felt  the 
inflexibility  of  this  rule.     I  cite  from  the  minutes  of  1835. 

"  A  motion  was  made  to  reconsider  the  vote  by  which  Dr.  Beman 
was  called  to  the  chair,  on  the  ground  that  many  persons  voted  in 
the  apprehension  that  Dr.  M'Doweli,  the  moderator  immediately 
preceding,  was  not  in  the  house."  Dr.  Ely,  the  stated  clerk,  put 
the  question,  "  All  who  are  in  favour  of  sustaining  the  resolution, 
by  which  Dr.  Beman  was  called  to  the  chair,  will  signify  it  by 
saying,  aye."  The  motion  was  lost,  and  Dr.  M'Doweli,  the  last 
moderator  present,  took  the  chair. 

The  answer  that  our  adversaries  make  to  this  objection,  is,  that 
this  rule  does  not  apply  to  extraordinary  cases,  like  that  we  are 
discussing,  but  only  to  the  ordinary  cases  of  the  absence  of  the 
moderator  of  the  last  year.  The  word  is  absent,  but  if  the  mode- 
rator be  physically  present,  but  disabled  by  misconduct,  he  is  legally 
absent.  If  the  occasion  was  extraordinary,  why  make  it  more  so 
by  extraordinary  expedients?  The  constitution  and  rules  supply  a 
method  of  conduct  for  almost  every  possible  exigency.  If  Dr. 
Elliott  had  vacated  his  chair  by  his  misconduct,  every  one  would 
have  understood  a  call  upon  the  last  preceding  moderator  present 
to  take  the  chair.  INo  one  would  have  mistaken  the  operation  for 
a  revolution  or  secession,  for  its  strict  conformity  to  rules,  would 
have  argued  its  being  a  submission  to  the  laws. 

And  now,  gentlemen,  you  will  observe  the  deceptive  nature  of 
this  whole  process,  to  those  who  were  not  admitted  to  the  secret. 
A  resolution  is  passed  at  a  caucus,  and  promulgated,  that  our  ad- 
versaries were  about  to  organize  an  opposition  Assembly,  which 
they  would  claim  to  be  the  true  Assembly.  Mr.  Cleaveland  rises, 
and  reads  a  paper,  purporting  to  emanate  from  a  party.  "  We" 
says  he,  "  have  been  advised  by  counsel  learned  in  the  law."  Who 
had  been  advised  by  counsel?  Not  the  Old  School,  but  the  New 
School !  He  then  further  states,  or  reads,  that  the  same  "  we,"  that 


184 

had  been  so  advised  by  counsel  learned  in  the  law,  that  is,  the  New 
School  party,  would  proceed  to  oiganize  the  Assembly,  with  the 
least  "  interruption"  possible.  Interruption  to  whom  ?  Certainly, 
to  the  Old  School  party;  that  'portion  of  the  commissioners  spoken 
of  in  the  caucus  resolution.  If  Mr.  Cleaveland  meant,  as  they  now 
assert,  to  address  this  resolution  to  the  whole  house,  (I  have  given 
you  my  reasons  already  for  disbelieving  this,)  he  certainly  did  it  in 
a  very  deceptive  way.  Will  any  man  have  the  audacity  to  assert 
that  the  Old  School  party  would  have  remained  silent,  had  they 
been  fairly  informed  of  the  use  that  would  have  been  made  of  their 
silence  ?  The  effect  given  to  silence,  by  the  rules  of  the  General 
Assembly,  was  only  intended  for  ordinary  occasions.  When  a 
question  is  put  by  the  usual  officer,  in  the  usual  form,  there  is  but 
one  alternative,  aye  or  no — and  silence  may  be  reasonably  con- 
strued into  acquiescence.  But  when  the  presiding  officer,  and  a 
member,  comes  into  collision,  and  the  one  calls  for  the  ayes  and 
noes,  and  the  other  cries  order,  is  it  not  as,  or  more  reasonable,  to 
construe  silence  into  obedience  to  the  cry  of  order,  which  merely 
requires  silence,  than  into  an  affirmative  vote?  Aliud  est  dicere 
aliud  tacere,  is  the  dictate  of  common  sense.  He  that,  under  the 
extraordinary  circumstances  of  this  sudden,  rapid,  indirect,  am- 
biguous motion,  would  take  advantage  of  our  silence,  must  show 
that  we  were  not  surprised,  that  we  were  not  deceived,  that  we 
were  not  mistaken,  and  that  our  silence  was  a  deliberate  concur- 
rence. You  will  not,  nor  will  this  Court,  permit  these  solemn  things 
to  be  made  a  mockery;  nor  these  important  rights  to  turn  upon  a 
quibble ! 

Another  fact  ought  not  to  be  omitted,  in  examining  into  the  in- 
tentions of  our  adversaries,  in  making  these  movements.  We 
maintain  that  they  intended  to  organize  another  Assembly,  not  by 
our  votes,  but  against  our  votes,  and  to  maintain  that  theirs  was 
the  real  Assembly.  That  the  position,  now  assumed  by  them,  that 
they  organized  by  our  votes  and  are  the  continuation  of  the  same 
Assembly  which  commenced  its  organization  under  Dr.  Elliott,  is 
an  after  thought.  Now  hear  a  further  proof.  A  written  copy  of 
a  resolution  was  handed  to  Dr.  Beman,  in  these  words: 

"Resolution  of  the  Trustees  of  the  Seventh  Presbyterian  Church, 
adopted  May  7th,  1838: 

^^  Resolved,  That  the  General  Assembly  of  the  Presbyterian  Church, 
which  is  to  convene  in  Philadelphia  on  the  17th  instant,  and  which 
shall  be  organized  under  the  direction  of  the  moderator  and  clerks 
officiating  during  the  meeting  of  the  last  General  Assembly,  shall 
have  the  use  of  the  Seventh  Presbyterian  Church,  during  their  ses- 
sions, to  the  exclusion  of  every  assembly  or  convention  which  may 
be  organized  during  the  same  period  of  time." 

Upon  the  receipt  of  this  paper,  the  pseudo  Assembly  adjourned 
to  the  First  Presbyterian  Church;  thereby  distinctly  acknowledg- 
ing that  they  were  not  the  General  Assembly  which  organized 
under  the  moderator  and  clerks  of  1837.  Various  other  acts  of 
theirs  denote  the  same  foregone  conclusion.  Their  moderator  did 
not  demand  the  chair,  but  retired  to  the  nethermost  part  of  the 


185 

building  and  stood  in  the  aisle,  his  party  crowding  too  much  around 
him.  Their  clerks  did  not  demand  the  roll,  nor  take  the  clerks' 
seats,  but  performed  their  important  functions  standing,  and  without 
implements  of  writing. 

We  shall  show  you,  that  their  whole  proceeding  was  carried  on 
in  tumult  and  disorder.  That  the  important  motion,  made  by  Mr. 
Cleaveland,  was  not  reversed  so  as  to  give  us  an  opportunity  of 
voting  had  we  desired  it.  We  will  bring  forward  every  commis- 
sioner within  our  reach,  who  was  present  on  that  occasion,  and 
they  will  tell  you  that  such  was  the  noise,  the  clapping  of  hands, 
the  hissing,  and  other  disorderly  manifestations,  from  the  mixed 
crowd  on  the  floor  of  the  house  and  in  the  galleries  that  they  could 
not,  and  did  not  hear. 

I  have  now,  gentlemen,  gone  through  the  case  which  we  shall 
exhibit  to  you.  I  have  stated  what  we  shall  prove,  and  have,  at 
the  same  time,  pointed  out  the  conclusions  which  we  seek  to  main- 
tain by  that  proof.  Before,  however,  I  leave  the  subject,  permit 
me  to  remark,  that  any  language  which  I  have  used,  which  may- 
savour  of  asperity,  has  been  used  impersonally.  I  respect  the  gen- 
tlemen of  the  parly,  against  whom  I  am  called  to  act  professionally, 
both  as  individuals  and  as  ministers  of  the  Gospel.  They  will, 
however,  permit  me  to  point  to  one  particular  in  which,  I  fear,  they 
have  acted  with  harshness.  Why  is  it,  that  almost  the  first  act 
that  was  done,  under  their  new  organization,  was  the  removal, 
from  office,  of  the  venerable  patriarch  of  this  church?  Out  of 
eighteen  trustees,  whom  they  might  have  removed,  why  did  they 
attack  him  first  and  make  him  the  first  defendant  in  a  proceeding, 
criminal  in  its  form  1  A  reverend  father,  who  was  named  and 
constituted  trustee,  by  the  act  of  incorporation  itself,  and  who  has 
been  continued,  for  forty  years,  amidst  all  the  vicissitudes  of  party. 
Does  this  not  betray  some  bitterness  of  feeling?  To  the  fluctuating 
faith  of  their  party,  does  not  this  inflexible  example  prove  a  re- 
proach ?  He  has  stood  for  years,  in  the  consistency  of  his  Doric 
simplicity,  a  land-mark,  from  which  might  be  measured  the  deflec- 
tions of  erratic  opinion. 

Ours  is,  perhaps,  gentlemen,  the  unpopular  party.  There  may, 
perhaps,  be  some  severe  and  uninviting  features  in  our  faith.  It  is, 
however,  of  too  high  and  inflexible  an  origin  to  be  accommodated, 
at  will,  to  the  prejudices  of  the  many.  We  count  not  upon  the  ap- 
probation of  the  light  and  frivolous,  but,  I  am  convinced,  that  all 
thinking  and  discreet  men  will  unite  with  us  in  a  fervent  aspiration, 
that  our  visible  church,  the  ark  of  a  pure  theology,  may  endure  till 
that  great  day,  when  the  angel  of  the  Apocalypse  shall  raise  his 
hand  to  heaven  and  swear,  that  time  shall  be  no  longer. 

Mr.  Hubbell  having  concluded  his  opening  on  behalf  of  the  re- 
spondents on  Wednesday,  P.  M.,  March  13th,  then  offered  in  evi- 
dence in  support  of  their  case  from  the  minutes  of  the  General 
Assembly  of  1837,  page  350,  [See  page  59  of  this  report.] 

Section  3d  of  a  protest  against  the  abrogation  by  the  Assembly 
of  the  "  Plan  of  Union." 

The  respondents  now  called  the  Rev.  John  M.  Krehs. 

16* 


186 

Interrogated  by  Mr.  Huhhell,  the  witness  testified :  I  am  a  minis' 
ter  of  the  Presbytery  of  New  York,  I  reside  in  the  city  of  New 
York,  and  am  pastor  of  the  Rutgers'  street  Presbyterian  Church 
in  that  city,  in  connexion  with  the  Presbytery  of  New  Yori<.  I 
was  permanent  clerk  of  the  General  Assembly  of  1837,  and  also  of 
that  of  1838.  Dr.  John  M'Dovvell,  of  Philadelphia,  the  stated  clerk 
of  the  General  Assembly,  and  m3'self,  were  the  Committee  of  Com- 
missions. The  difference  between  the  stated  and  permanent  clerks 
is  this.  The  latter  makes  up  the  journal  of  the  Assembly  from  day 
to  day,  reads  it,  and  keeps  the  papers  until  after  the  dissolution  of 
that  body,  when  he  hands  them  over  to  the  stated  clerk.  The  one 
is  the  writing  clerk,  and  the  other  the  depositary  of  the  records. 
There  is  also  another  clerk  elected  at  the  meeting  of  the  Assembly^ 
who  is  called  the  temporary  clerk,  whose  business  is  to  assist  the 
permanent  clerk.  His  office  ceases  with  the  dissohilion  of  the  As- 
sembly. The  Committee  of  Commissions,  as  I  said,  consists  of  the 
permanent  and  stated  clerks.  Some  weeks  previous  to  the  meeting 
of  the  Assembly  of  1838,  Dr.  M'Dowell  and  myself  had  published, 
over  our  signatures  as  clerks,  in  several  religious  newspapers,  a 
notice,  that  between  four  and  five  o'clock  on  the  afternoon  of  the 
day  previous  to  the  meeting,  and  between  nine  and  eleven  o'clock 
on  the  morning  of  the  meeting,  the  Committee  of  Commissions 
would  be  in  attendance,  to  receive  and  examine  commissions. 

In  preparation  for  the  pressure  of  business  usual  at  the  opening 
of  the  Assembly,  1  had  prepared  a  blank  form  before  I  left  New 
York,  embracing  the  usual  opening  minute  with  a  list  of  the  synods 
and  presbyteries,  to  which  I  might  attach  the  names  of  persons  who 
might  present  commissions.  These  were  our  preliminary  arrange- 
ments. In  this  blank  roll  the  names  of  one  hundred  and  twenty  or 
perhaps  one  hundred  and  thirty  commissions  were  received  by  us 
on  Wednesday  afternoon  the  16th  of  May.  Every  person  present- 
ing a  commission  is  asked,  Are  you  the  principal  or  the  alternate 
named  in  this  commission?  The  principal  is  the  one  first  named^ 
and  then  to  provide  for  his  absence,  another  is  appointed,  who  in 
any  emergency  may  take  the  seat.  If  any  one  answers  that  he  is 
the  alternate,  we  make  an  arbitrary  mark,  to  designate  the  very 
man  who  presented  the  commission.  The  clerks,  as  a  committee 
of  commissions,  insert  the  names  of  those  whose  commissions  we 
approve,  on  the  roll.  A  large  number  were  inserted  on  the  morn- 
ing of  the  next  day.  The  roll,  as  completed  by  Dr.  M'Dowell  and 
myself,  contained  the  names  of  about  two  hundred  and  twenty, 
perhaps  two  hundred  and  fourteen  commissioners,  and  four  or  five 
were  not  included  on  account  of  informality  or  some  circumstance 
on  which  we  could  not  decide.  We  made  a  separate  report  in 
relation  to  these  informal  commissions.  Those  commissions  which 
had  any  defect  we  kept  separate  from  the  others  in  order  to  refer 
them  to  the  Committee  of  Elections,  which  committee  is  appointed 
as  the  first  business  in  order  at  the  opening  of  the  Assembly.  This 
committee  is  appointed  from  amongst  those  members  of  the  house 
whose  seats  are  undisputed,  to  examine  and  report  on  the  informal 
or  defective  commissions. 

The  first  business,  according  to  a  standing  rule  of  the  General 


187 

Assembly,  is  the  appointment  of  this  committee.  Of  those  com- 
missioners which  presented  their  commissions  to  us  on  the  evening 
of  Wednesday,  there  were  not  more  than  five  New  School  men. 
The  others  presented  their  commissions  next  morning.  Those  who 
presented  their  commissions  on  Thursday  morning,  were  both  New 
School  men  and  Old  School  men.  Their  commissions  were  ex- 
amined, and,  .so  far  as  found  correct,  were  enrolled.  I  cannot  give 
the  precise  order  of  events ;  but  some  time  in  the  morning  of  Thurs- 
day, Rev.  Albert  Barnes  and  Rev.  Mr.  Brainerd  presented  their 
commissions  from  the  Third  Presbytery  of  Philadelphia.  We  told 
them  that  we  could  not  receive  the  commissions.  Mr.  Barnes  ex- 
postulated with  Dr.  McDowell;  but  Dr.  M'Dowell  told  him  that 
we  could  exercise  no  discretion  on  the  subject ;  that  we  could  not 
receive  a  commission  from  that  presbytery,  which  had  been  dis- 
solved by  the  General  Assembly  of  1837 ;  that  the  Assembly  itself, 
and  not  its  officers,  must  now  decide  the  matter.  The  Rev.  Miles 
P.  Squier  also  presented  a  commission,  purporting  to  be  from  the 
Presbytery  of  Geneva,  which  we  also  refused  to  receive,  telling 
him  that  the  Assembly  of  1837  had  declared  the  synod  to  which 
his  presbytery  belonged,  no  part  of  the  Presbyterian  Church ;  that 
his  remedy  must  be  in  the  Assembly,  and  not  in  its  officers.  Mr. 
Squier,  I  think,  observed  to  Mr.  Barnes,  "  Your  case  is  different 
from  ours ;  you  have  been  dissolved."  He  replied,  "  I  beg  your 
pardon,  sir;  but  you  are  mistaken." 

[The  counsel  for  the  relators  objected  to  the  witnesses  going  into 
these  conversations  between  Mr.  Barnes  and  Mr.  Squier.] 

Several  others  presented  commissions  of  a  similar  character, 
which  we  refused  to  receive.  Rev.  Dr.  Richards  presented  one ; 
and  to  him  we  gave  the  same  answer,  that  we  had  no  right  to  re- 
ceive the  commission;  no  liberty  to  decide  his  case,  unless  further 
orders  were  given  to  us  by  the  Assembly.  We  treated  all  alike, 
from  the  four  synods,  were  very  civil,  and  told  them  that  their  only 
remedy  was  in  the  Assembly. 

Next  we  were  met  by  a  very  respectable  deputation,  one  of 
whom  was  Mr.  Squier,  who  said  they  were  authorized  to  offer  the 
commissions  from  the  presbyteries  within  the  four  excinded  synods, 
and  to  demand  that  they  should  be  received.  We  answered,  that 
they  could  not  be  received  or  enrolled,  and  gave  an  absolute  re- 
fusal. One  gentleman  asked  whether,  "  We  could  not,"  meant, 
"We  would  not."  I  replied,  (being  well  acquainted  with  him,)  in 
a  pleasant  manner,  that  we  did  not  intend  to  be  abrupt,  but  if  he 
preferred  that,  I  uould  not  receive  it.  Rev.  Mr.  Aikin,  of  Cleve- 
land, asked  those  standing  by,  to  take  notice  of  the  refusal.  I  ob- 
served, that  this  was  not  necessary;  that  if  he  chose,  we  would 
endorse  the  refusal  upon  the  commissions.  He  said,  "  We  shall 
complain  to  the  Assembly."  I  answered,  that  that  was  just  what 
we  wished :  that  their  remedy  was  in  the  Assembly,  and  it  would 
meet  the  next  hour.  I  recollect  nothing  more  in  regard  to  the  meet- 
ing of  the  Committee  of  Commissions. 

Being  interrogated  as  to  the  locking  of  the  door,  the  witness 
said:  We  occupied  a  small  room  under  the  pulpit:  from  it  two 
doors,  one  on  each  side  of  the  pulpit,  opened  into  the  body  of  tbe 


188 

church.  On  each  end  of  the  room  are  two  large  doors,  one  open- 
ing into  the  court  in  which  the  house  stands,  and  the  other  into  the 
grave-yard.  On  Wednesday  and  Thursday,  we  found  the  disposi- 
tion of  persons  to  press  through  the  Httle  doors  by  the  side  of  the 
pulpit,  was  a  great  annoyance.  They  interrupted  us,  while  attend- 
ing to  commissioners  who  presented  themselves.  I  repeatedly 
locked  the  door  that  opened  from  the  session-room  into  the  grave- 
yard, and  that  on  the  left  side  of  the  pulpit,  as  you  face  the  audi- 
ence. My  table  was  near  that  door.  When  any  one  wished  to 
enter,  I,  perhaps  not  being  so  kindly  disposed  as  I  should  be,  refused 
to  open  it.  The  room  may  be  eight  or  ten  feet  wide.  The  five 
large  doors  opening  into  the  body  of  the  church  were  open,  and 
one  of  the  little  doors  from  the  session-room  constantly  so.  The 
door  by  which  we  sat  was  closed,  in  order  to  prevent  the  room 
from  being  made  a  passage-way.  Application  was  made  for  ad- 
mission by  Old  School  men  whom  we  excluded.  It  is  probable 
that  we  refused  admission  to  some  of  the  New  School  men  also, 
as  we  excluded  a  number,  telling  them  to  go  round  by  the  other 
doors.  We  drew  no  line  of  distinction.  Our  purpose  was  simply 
to  prevent  interruption  to  our  business  in  relation  to  commissions 
and  the  completion  of  the  roll.  Public  worship  commenced  at  11 
o'clock.  A.  M.  We  remained  in  the  room  during  the  time  occu- 
pied by  the  sermon,  and  went  on  with  the  examination  of  com- 
missions. This  appeared  absolutely  necessary,  as  a  number  of  com- 
missions had  not  yet  been  examined,  and  we  could  not  otherwise 
have  completed  the  roll  in  seasgn  for  the  Assembly.  We  entered 
the  church  by  the  door  which  had  been  locked,  as  before  stated, 
about  five  minutes  before  the  religious  exercises  were  closed.  I 
think  they  were  singing  at  the  time  I  entered  the  body  of  the  church, 
the  prayer  after  the  sermon  being  over,  and  the  moderator  still  in 
the  pulpit  I  took  my  stand  by  the  clerk's  table,  which  is  under  the 
pulpit,  and  just  beneath  the  moderator's  chair,  which  is  raised  from 
the  floor.  The  table  is  appropriated  to  the  business  of  the  clerks, 
and  is  from  four  to  five  feet  long.  My  position,  ordinarily,  is  at 
the  head  of  the  broad  aisle,  with  my  back  to  the  audience  and  my 
face  toward  the  moderator,  for  the  Qonvenience  of  writing.  I  stop- 
ped before  I  reached  my  seat,  and  took  a  station  on  the  west  side 
of  the  table,  facing  the  audience :  I  cannot  say  whether  I  sat  or 
stood.  I  never  before  had  seen  the  house  so  crowded.  The  galle- 
ries and  the  floor  were  very  full.  I  either  sat  or  stood  on  the  west 
side  of  the  table,  facing  the  audience,  until  Dr.  Elliott  entered  the 
chair,  as  moderator.  I  was  present  during  the  constituting  prayer, 
immediately  after  which  Dr.  Elliott  called  on  me  to  report.  But  I 
did  not  speak,  as  I  saw  Dr.  Patton  on  the  floor,  and  heard  his  voice, 
saying,  "  Moderator,  Moderator,"  two  or  three  times.  At  the  same 
time  a  voice  fell  on  my  ear,  calling  on  me  to  go  on  with  the  roll — 
and  Dr.  Elliott  told  me  to  go  on  ;  but  I  remained  quiet.  Dr.  Patton 
said,  that  he  wished  to  ofier  certain  resolutions,  and  to  take  the 
sense  of  the  house  upon  them  without  debate.  The  moderator  told 
him  he  was  not  in  order,  as  the  first  business  was  the  report  of  the 
clerks  upon  the  roll.     Dr.  Patton  said,  that  he  had  the  floor  before 


189 

the  clerks.  The  moderator  replied,  that  the  first  business  was  the 
report  on  the  roll.  Dr.  Patton  said,  I  must  take  an  appeal  from 
your  decision  to  the  house.  The  moderator  said  that  he  was  out 
of  order ;  for,  as  there  was  no  house  in  existence,  there  could  be  no 
appeal.  I  was  still  waiting  until  the  floor  should  be  cleared,  and 
silence  restored.  The  precise  terms  of  this  colloquy  I  do  not  pre- 
tend to  give,  but  only  the  substance.  Dr.  Patton  sat  down,  and  I 
proceeded  to  report  the  roll,  as  clearly  and  distinctly  as  I  could.  I 
also  reported  four  or  five  informal  commissions,  which  had  been 
presented  but  not  enrolled,  that  they  might  go  to  the  Committee  of 
Elections,  which  it  was  usual  to  appoint  then.  I  did  not  report  the 
commissioners  from  the  excluded  synods.  We  did  not  think  we 
had  a  right  to  do  so. 

I  ought  to  state,  however,  that  there  was  a  difference  of  opinion 
between  Dr.  M'Dowell  and  myself,  in  regard  to  this  subject.  I 
supposed  it  our  duty  to  receive  and  report,  but  not  to  enrol  them. 
He  thought  that  we  should  not  receive  them,  any  more  than  com- 
missions from  any  strange  body  which  was  not  Presbyterian:  that 
their  only  remedy  was  in  the  Assembly.  He  being  older  than  my- 
self, I  yielded  my  assent,  though  retaining  my  opinion.  I  believed 
then,  and  I  believe  now,  that  we  ought  to  have  received  them,  and 
reported  on  them,  stating  the  circumstances.  Dr.  M'Dowell  would 
not  consent  to  this,  and  I  accordingly  made  such  a  report  as  he 
would  consent  to.  After  the  roll  had  been  read,  the  moderator 
announced  that  those  persons  whose  names  had  been  reported, 
were  to  be  considered  as  duly  elected  members  of  the  General 
Assembly ;  and  added,  that  if  there  were  any  other  commissioners 
present,  who  had  not  had  an  opportunity  of  handing  in  their  com- 
missions, now  was  the  time  to  present  them.  Dr.  Mason  rose,  and, 
holding  a  bundle  of  papers  like  that  here  exhibited,  and  which  I 
presume  is  the  same,  said,  that  he  offered  certain  commissions  from 
the  presbyteries  within  the  bounds  of  the  four  disowned  synods; 
that  he  had  offered  them  to  the  clerks,  who  had  rejected  them  ;  and 
now  moved  that  the  roll  should  be  completed,  by  inserting  the 
names  of  the  commissioners  to  whom  they  belonged.  He  did  not 
call  them,  however,  the  disowned  synods;  perhaps  he  named  them. 
This  is  the  substance  of  what  he  said.  The  moderator  said  to  him, 
"  Your  motion,  sir,  is  out  of  order  at  this  time."  Dr.  Mason  said, 
that,  with  great  respect,  he  must  appeal  to  the  house  from  that 
decision.  The  moderator  replied  that  his  appeal  was  out  of  order, 
and  Dr.  Mason  obeyed  him,  and  sat  down :  that  is,  he  sat  down 
when  the  moderator  told  him  his  appeal  was  out  of  order.  Then 
Mr.  Squier  rose,  on  the  opposite  side  of  the  aisle  from  Dr.  Mason, 
and  said,  (I  do  not  recollect  the  whole  of  what  he  stated,)  that  he 
had  a  commission  from  the  Presbytery  of  Geneva;  that  he  had  of- 
fered it  to  the  clerks,  and  it  had  been  refused ;  and  that  he  now  ten- 
dered his  commission  and  demanded  his  seat  on  that  floor.  The 
moderator  inquired  whether  that  presbytery  was  within  the  bounds 
of  the  Synod  of  Geneva,  or,  of  the  disowned  synods ;  I  do  not  re- 
collect precisely  w^hich.  Mr.  Squier  answered,  that  it  was.  The 
moderator  then  said,  "  We  do  not  know  you,  sir."     It  was  at  this 


190 

point  that  Mr.  Cleaveland  rose,  and  began  to  read  a  paper ;  what 
it  contained,  or  what  he  said,  I  cannot  tell.  There  was  a  noise  of 
calls  to  order.  The  moderator  called  to  order;  and  the  members 
about  me  cried  "  Order,  order."  If  I  recollect  any  thing  at  all  of 
what  Mr.  Cleaveland  said,  it  was  something  about  legal.  I  thought 
he  used  the  word  "  legal,"  and  it  was  the  only  one  impressed  upon 
my  memory.  I  do  not  recollect  any  thing  more.  I  can  only  give 
my  impression  of  what  he  was  about. 

Mr,  Meredith  objected  to  the  witness'  saying  more,  as  he  had 
stated  that  he  recollected  nothing  more. 

The  Court  said :  The  witness  may  state  what  he  recollects. 

The  Witness  proceeded :  I  don't  recollect  any  thing  else  distinct- 
ly; I  don't  know  what  Mr.  Cleaveland  said.  I  did  not  know  then, 
what  he  said,  and  had  only  a  confused  notion  from  having  caught 
the  word  legal,  or  something  of  that  sort;  but  it  is  all  darkness  to 
me.  I  was  looking  on,  endeavouring  to  see  and  hear.  My  recol- 
lection is,  that  Mr.  Cleaveland  gradually  turned  round,  until  he 
faced  the  western  wall.  While  he  read,  there  were  calls  to  order 
from  the  moderator,  and  those  near  him,  mingled  with  the  waving 
of  hands,  and  the  voices  of  some  saying  "  Hush,  hush  1"  These 
things  continued  for  a  little  while.  The  reason  that  I  did  not,  and 
could  not  hear,  was,  that  there  was  too  much  noise.  I  should  ob- 
serve that  by  this  time,  during  the  colloquy  between  Mr.  Squier  or 
Dr.  Mason  and  the  moderator,  I  had  moved  round  to  the  place  which 
I  usually  occupied,  a  little  stool,  without  a  back,  so  that  I  could 
face  either  the  audience  or  the  moderator.  Mr.  Cleaveland's  read- 
ing, or  speaking,  or  whatever  it  was,  continued ;  I  could  hear  his 
voice  mingling  with  the  others.  Then  there  was  a  sort  of  confused 
buzz,  and  the  next  distinct  sound,  overtopping  all  the  rest,  was  a 
loud  "  Aye !"  Very  rapidly  after,  at  so  small  an  interval  that  I 
could  not  pretend  to  mark  it,  but  very  quickly,  in  rapid  succession, 
there  was  another  loud  "  Aye  !"  I  heard  no  motion,  nor  did  I  hear 
any  question  put.  I  think,  at  this  time,  the  cries  to  order  were  not 
so  frequent  as  they  had  been.  My  attention  was  particularly  di- 
rected to  the  place  where  Mr.  Cleaveland  stood,  but  many  persons 
were  now  standing  up  between  me,  as  I  stood  on  the  floor,  and  the 
actors  in  the  scene,  and  shut  them  out  entirely  from  my  view.  I 
had  risen,  and  was  standing,  looking  sometimes  towards  the  mode- 
rator, and  sometimes  back  again.  1  think  I  heard  a  third  "  Aye !" 
and  that  very  loud,  and  a  few  "Ayes"  distinct  from  the  mass,  in  a 
very  shrill  key.  I  had  no  idea  at  the  time  to  what  these  "Ayes" 
were  a  response.  I  endeavoured  to  hear  in  order  to  record  the 
proceedings — as  clerk,  to  catch  the  motion,  if  I  could  hear  any. 
Well,  the  next  thing  I  recollect  was  a  general  movement  towards 
the  east  door  of  the  church  of  the  body  of  men  around  Mr.  Cleave- 
land. I  could  see,  as  they  moved  ofl',  some  putting  on  their  hats, 
and  some  jumped  over  the  partitions  intervening  between  the  two 
ranges  of  pews.  One  person  returned  from  the  door,  as  near  as  I 
could  see,  and  shouted  out,  that  the  General  Assembly  of  the  Pres- 
byterian Church  would  meet  in  Mr.  Barnes's  lecture-room  imme- 
diately.    I  don't  know  that  it  was  Dr.  Fisher.     I  don't  know  whe- 


191 

ther  it  was  he  or  not,  but  I  think  it  was  not.  It  was  a  notice  given 
by  some  person  who  returned,  for  the  information  of  the  persons 
assembled  there.  I  don't  recollect  the  exact  words  of  the  notice. 
The  persons  engaged  in  this  affair  having  moved  off,  the  tumult, 
subsided,  and  the  Assembly  became  quiet.  I  am  a  little  near-sighted, 
but  this  defect  is  repaired  by  artificial  means.  I  hear  very  well. 
The  Assembly  continued  to  sit  in  the  Seventh  Church  about  two 
weeks,  or  longer.  The  session  certainly  continued  at  least  two 
weeks.  The  great  body  of  those  who  acted  with  Mr.  Cleaveland 
moved  off  down  the  aisle  very  regularly;  I  speak  of  but  a  few  per- 
sons who  had  their  hats  on,  and  jumped  over  the  backs  of  the  pews. 
A  mass  of  men  moving  off  in  that  way  must  have  made  some  noise. 
During  the  time  that  the  tumult  continued,  (this  word,  which  I  use 
without  intending  any  disparagement,  conveys  the  very  idea  that 
the  scene  impressed  upon  me  at  the  time,)  a  motion  was  pending 
for  the  appointment  of  a  Committee  of  Elections.  Whether  this 
motion  was  made  before  Dr.  Mason  rose,  or  while  Mr.  Cleaveland 
was  on  the  floor  reading,  I  can't  say.  It  was  certainly  one  of  the 
two.  The  noise  was  very  great.  Some  called  to  order,  and  others 
said,  "  Hush !  let  them  go  on."  The  moderator  said,  we  would 
wait  till  the  tumult  should  subside,  and  the  house  become  quiet,  and 
then  proceed  to  business.  The  moderator  merely  sat  still  in  his 
chair,  or  perhaps  he  rose.  I  kept  in  my  place,  waiting  until  we 
could  go  on.  After  the  departure  of  the  mass  to  which  I  have  re- 
ferred, the  appointment  of  a  Committee  of  Elections  was  made,  to 
whom  were  referred  all  the  doubtful  commissions.  This  was  the 
first  business  done  after  their  departure.  I  don't  recollect  any  thing 
else  that  was  done  then.  I  cannot  tell  the  length  of  time  that 
elapsed  after  Dr.  Patton  arose.  There  was  the  interval,  between 
Dr.  Patton  and  Dr.  Mason's  rising,  of  my  reading  the  roll.  From 
Mr.  Cleaveland's  rising  till  the  departure  of  his  friends  from  the 
church,  was,  I  should  think,  four  or  five  minutes.  I  have  no  dis- 
tinct impression  as  to  the  time:  I  was  very  much  amazed,  and 
looked  on  in  great  wonder.  Dr.  Elliott  had  made  a  call  for  com- 
missions when  Dr.  Mason  rose.  I  cannot  say  whether  the  motion 
for  the  appointment  of  a  Committee  of  Elections  was  made  after 
Dr.  Mason,  or  after  Mr.  Cleaveland  rose.  I  did  not  hear  any 
"Noes"  on  Mr.  Cleaveland's  motion.  I  did  not  myself  vote:  I  was 
not  a  member  of  the  Assembly.  The  gentleman  who  asked  me 
whether  by  "  I  could  not,"  I  meant  "  I  loould  not,"  was  the  Rev. 
George  Duffield.  He  was  not  a  commissioner,  but  having  come 
merely  with  his  friends,  he  interposed.  Mr.  Duffield  had  been  for 
five  years  my  pastor,  and  it  was  on  the  ground  of  my  familiarity 
with  him,  and  without  meaning  to  be  uncivil,  that  I  told  him,  that 
if  he  liked  that  form  of  expression  better,  I  would  not.  I  have  with 
me  the  roll  that  I  called.  [Witness  here  produced  papers.]  This 
is  the  original  paper,  the  blank  prepared  by  me  before  I  left  New 
York.  The  roll  as  reported  and  read  by  me,  contained  the  names 
of  two  hundred  and  fifteen  members.  Afterward  were  added  five 
other  names  from  commissions  that  were  defective,  informal,  or 
irregular,  making  in  all,  two  hundred  and  twenty.   These  last  were 


192 

referred  to  the  Committee  of  Elections,  and  on  their  report  were 
entered  on  the  roll,  with  the  exception  of  a  minister  and  elder  from 
the  Presbytery  of  Greenbriar,  a  new  presbytery,  which  had  been 
erected  by  the  Synod  of  Virginia,  and  was  formed  by  a  division  of 
the  Presbytery  of  West  Hanover.     Their  commissions  were  re- 
ferred back  to  the  Committee  of  Elections,  that  they  might  inquire 
concerning  the  regularity  of  the  establishment  of  the  presbytery. 
Again  they  reported,  and  both  were  admitted.     Two  hundred  and 
twenty  therefore  were  reported  that  day.     The  commissioners  so 
enrolled  had  all  presented  their  cotnmissions  to  us.     No  name  was 
on  the  roll  for  which  we  had  not  a  commission  in  our  hands,  nor 
unless  we  were  satisfied  that  the  commissioner  was  present.     I  did 
not  call  the  roll  in  the  morning,  after  they  had  retired  to  the  First 
Church;  but  on  the  opening  of  the  Assembly  in  the  afternoon,  a 
motion  was  made  to  call  it,  to  see  how  many  answered,  and  to 
mark  the  absentees.     Of  those  whose  names  were  on  the  roll,  there 
answered  one  hundred  and  fifty-two.     I  speak  to  the  best  of  my 
recollection  of  numbers,  about  which  I  took  pains  to  inform  myself. 
They  are  recorded  in  that  manuscript,  or  in  the  subsequent  part. 
The  minutes  occupy  five  or  six  books  of  twelve  sheets  each.    There 
were  recorded  present  one  hundred  and  fifty-two,  and  sixty-eight 
absent.     On  the  next  morning,  three  of  these  sixty-eight  appeared, 
and  requested  that  their  presence  might  be  recorded.     These  were 
Dr.  Green,  Mr.  King,  and  Mr.  Snowden.     They  had  been  enrolled 
and  present  the  day  before.     Mr.  King  was  either  an  elder  or 
minister:  both  the  others  were  ministers.     They  had  been  present 
on  Thursday  morning;  and  their  absence  at  the  time  of  calling  the 
roll  was  excused,  because  of  the  inclemency  of  the  weather,  and 
their  feeble  health.     Of  the  remaining  absentees,  two  others  subse- 
quently appeared,  and  voted  on  several  propositions  which  came 
before  the  Assembly  up  to  the  time  of  its  dissolution.     I  saw  them, 
and  heard  them  vote  and  speak.     I  don't  know  whether  they  went 
off  with  the  party  that  retired  to  the  First  Church.     They  were  the 
Rev.  Elipha  White,  and  the  Rev.  Mr.  Magruder,  of  Charleston 
Union  Presbytery.     No  notice  was  taken  of  their  subsequent  ap- 
pearance: they  made  speeches  and  voted.    At  the  dissolution  of  the 
Assembly,  Mr.  White  came  and  had  his  mark  removed  from  the 
roll,  saying  that  he  had  been  out  only  a  few  minutes. 

There  were  subsequently  added  to  the  roll  the  names  of  four 
commissioners.  One  of  them  was  Mr.  John  Green,  who  first  at- 
tended on  the  ninth  day  of  the  session.  Another  was  the  Rev.  A. 
W.  Lion,  a  commissioner  from  the  Presbytery  of  Arkansas,  who 
first  attended  on  the  twelfth  day  of  the  session.  On  the  eleventh 
day  of  the  session,  the  two  commissioners  from  the  Presbytery  of 
Salem,  in  the  state  of  Indiana,  Rev.  Wm.  W.  Martin  and  Henry 
L.  Fabrigue,  attended  for  the  first  time.  The  names  of  these  four 
commissioners  were  not  inserted  on  the  original  roll.  They  ap- 
peared before  the  Committee  of  Commissions,  and  that  committee 
having  approved  their  commissions,  added  their  names  to  the  roll. 
We  were  not  authorized  to  inquire  why  they  were  not  in  attendance 
at  an  earlier  day.     They  are  accountable  to  their  own  presbyteries 


193 

for  their  attention  to  the  objects  of  their  appointment.  I  think, 
however,  that  when  they  appeared,  I  inquired  of  them  what  had 
happened  to  detain  them.  Messrs.  Martin  and  Fabrigue  arrived 
late,  and  looked  sick.  During  tlie  calling  of  the  roll,  to  mark  ab- 
sentees, Mr.  Scott  was  inquired  of,  or  he  himself  rose  to  state,  why 
he  did  not  answer  to  his  name.  I  think  Mr.  Scott  was  afterwards 
present,  and  that  his  case  is  referred  to  on  the  minutes.  The  names 
of  these  two  were  upon  the  original  roll.  Mr.  Scott  asked  permis- 
sion to  state  his  reason :  he  did  not  answer  to  his  name,  but  got  up 
immediately  afterwards.  I  do  not  recollect  what  reason  he  assigned 
for  not  answering  to  his  name  when  called  on  the  roll. 

The  examining  counsel  asked  the  witness  when  Mr.  Scott  first 
appeared. 

Objection  was  made  to  the  minute  investigation  into  which  the 
counsel  appeared  to  be  going,  respecting  the  attendance  of  indi- 
viduals. 

The  objection  was  sustained  by  the  Court,  but  subsequently  waived 
by  the  plaintiff',  and  the  witness  proceeded: 

Mr.  Scott  attended  on  the  Assembly  on  that  afternoon.  I  have 
no  personal  acquaintance  with  him,  and  should  not  know  him  if  I 
saw  him.  The  minute  which  I  have  referred  to,  that  relating  to 
Mr.  Scott's  explanation,  was  written  by  Mr.  Crane,  the  temporary 
clerk.  The  minute  does  not  state  his  reason.  On  a  subsequent 
day,  but  on  what  occasion  I  don't  recollect,  Mr.  Eagleton  rose, 
when  his  name  was  called,  and  said  that  he  did  not  feel  at  liberty 
to  acknowledge  that  as  the  Assembly.  He  did  not  say  that  he  had 
joined  the  other:  I  understood  him  to  repudiate  both.  Dr.  Hill  was 
one  of  the  two  hundred  and  twenty.  He  was  marked  absent  on  the 
afternoon  of  the  first  day,  and  that  is  all  that  I  know  about  him. 
Mr.  Jamieson  was  marked  absent,  and  that  is  all  I  know  about  him. 
Mr.  Ralph  Smith  was  also  marked  absent,  and  I  know  nothing  fur- 
ther in  regard  to  him;  I  mean  of  my  own  knowledge:  I  am  not 
speaking  of  rumours,  or  information  subsequently  received. 

Cross-examination. — Interrogated  by  Mr.  Meredith,  the  witness 
said:  The  papers  in  my  hand  are  not  mere  memoranda,  made  by 
myself,  of  the  occurrences  of  the  organization  of  the  Assembly;  I 
will  tell  how  they  were  made  up.  At  the  opening  of  the  Assembly 
in  the  afternoon,  I  read  the  minute  I  had  prepared  of  the  occur- 
rences of  the  morning,  and  proposed  to  notice,  in  a  general  way, 
that  a  disturbance  had  taken  place.  It  was  objected  to.  It  was 
said,  that  it  was  not  usual  to  notice  transactions  which  led  to  nothinf^; 
as  when  a  resolution  had  been  debated,  and  withdrawn,  it  was  not 
customary  to  insert  it  on  the  minutes;  it  had  been  abortive.  It  was 
said,  during  the  remarks  on  the  correctness  of  the  minutes,  that  my 
report  should  not  stand.  I  think  it  was  at  the  same  time,  though 
my  recollection  is  a  little  confused,  that  a  committee  was  appointed 
to  prepare  a  minute,  which  should  give  a  full  account  of  the  trans- 
action. My  account  was  very  concise,  merely  stating  that  Dr. 
Mason  made  a  motion,  which  was  declared  out  of  order  by  the 
moderator;  that  then  a  scene  of  confusion  occurred,  and  that  after 
the  tumult  subsided,  we  proceeded  to  business.     A  committee,  the 

17 


194 

record  does  not  state  whom,  was  appointed.     I  recollect  that  Dr. 
Nott  and  Dr.  Elliott  were  on  the  committee;  these  two  I  recollect, 
and  perhaps  might  remember  others,  if  there  names  were  suggested. 
I  think  a  minute  was  made  of  this  appointment.     I  am  sure  that  I 
made  a  note  with  my  pencil  on  the  margin  of  the  rough  minutes,  that 
that  was  the  place  where  it  should  be  inserted.     It  is  very  custom- 
ary for  the  Assembly,  when  not  satisfied  with  a  minute,  to  appoint 
a  committee  to  prepare  one,  to  take  the  place  of  the  clerk's.    In  such 
case,  all  I  have  before  made  is  erased  or  cut  out.     That  was  the 
way  here.     There  is  no  record  here  of  the  appointment  of  the  com- 
mittee.    This  record  is  the  prepared  minute.     It  is  inserted,  as  you 
see,  on  different  coloured  paper  from  that  which  I  brought  from 
New  York- 
Interrogated  by  M?'.  Wood,  the  witness  said :  I  do  not  remember 
who  moved  the  appointment  of  a  committee  of  elections.    I  presume 
the  motion  was  seconded.     I  made  a  minute  of  it  at  the  time.     I 
am  in  the  habit  of  making  full  records,  if  possible,  at  the  time,  and 
if  not,  notes  to  be  filled  up  afterwards.     I  am  not  confident  whether 
the  motion  was  made  while  Mr.  Cleaveland,  or  while  Dr.  Mason 
was  speaking.     My  strong  impression  is,  that  Dr.  Mason  was  on 
the  floor,  and  that  the  proceeding  was  interrupted  by  the  noise.     I 
cannot  tell  certainly,  whether  it  was  made  while  Dr.  Mason  was  on 
the  floor,  or  after  he  sat  down,  or  after  Mr.  Cleaveland  rose.     I 
don't  know  whether  the  moderator  was  in  order,  when  he  made 
proclamation,  that  if  there  were  any  who  had  not  yet  presented 
their  commissions,  they  should  hand  them  in.     I  don't  know:  you 
must  ask  him.     I  have  no  doubt  of  it.     This  proclamation  preceded 
the  appointment  of  the  Committee  of  Elections.     The  appointment 
of  this  committee  was  not  made  until  after  Mr.  Cleaveland's  motion. 
Mr.  Joshua  Moore's  commission  was  presented  after  the  procla- 
mation of  the  moderator,  and  after  the  appointment  of  the  commit- 
tee.    He  did  not  present  it  until  after  the  election  of  a  new  mode- 
rator.    The  record,  in  regard  to  this  matter,  is  wrong ;  it  was  not 
made  in  my  presence.     I  will  say  now,  what  was  done  in  this  mat- 
ter.    The  record,  in  regard  to  Mr.  Moore,  was  contained  in  the 
report  of  Dr.  Elliott.     Mr.  Moore  did  not  come  to  me,  until  after 
the  election  of  the  moderator.     I  informed  Dr.  Nott  that,  at  a  cer- 
tain stage  of  the  business,  Mr.  Moore's  commission  was  presented; 
and  he  inserted  my  information  in  the  wrong  place.     There  was,  in 
the  Assembly  of  1S3S,  some  action  on  the  excinding  resolutions  of 
1837;  but  no  other,  that  I  know  of,  than  what  is  contained  in  the 
"  famous  three  acts,"  as  they  are  commonly  called.     The  excinding 
resolutions  were  not  reversed.     There  was  no  action,  either  to  re- 
verse or  to  afiirm  them,  except  in  what  are  commonly  called  "the 
famous  three  acts:"  these  acts  were  adopted  on  the  report  of  the 
committee  for  the  pacification  of  the  Church.     I  cannot  interpret 
these  acts:  they  are  very  long.     I  do  not  know  w-hether  they  treat 
of  the  four  synods  as  excinded  synods.     I  merely  know,  in  a  gene- 
ral way,  that  they  provide  for  the  incorporation  with  the  church, 
of  all  in  those  synods  who  should  prove  to  be  purely  Presbyterian 
in  doctrine. 


195 

By  Mr.  Meredith. — Some  days  the  roll  was  called,  and  some  not. 
At  the  end  of  the  sessions  of  the  Assembly,  it  was  called;  and  all 
who  were  absent  without  leave,  were  so  marked.  Very  few,  per- 
haps from  six  to  ten,  had  obtained  leave  of  absence. 

In  answer  to  an  inquiry  of  the  Court,  the  witness  said:  I  cannot 
say,  whether  the  motion  to  appoint  a  committee  of  elections  was 
made  while  Dr.  Mason  was  on  the  floor.  Part  of  the  time,  I  was 
attending  to  my  ordinary  business,  and,  at  other  times,  was  looking 
towards  the  interruption. 

Re-examined  by  M?-.  Preston,  the  witness  said  :  It  is  usual,  shortly 
after  the  Assembly  is  organized,  to  appoint  a  standing  committee 
of  four  or  five  members  on  leave  of  absence.  If  any  member  wishes 
to  go  home,  he  applies  to  them,  and,  if^they  think  proper,  they  give 
him  leave,  and  report  the  fact,  at  the  first  opportunity,  to  the  house. 
I  think  a  few  asked  leave  of  absence ;  I  cannot  say  certainly,  how 
many,  for  I  have  nothing  to  guide  my  recollection. 

The  defendants  called  Dr.  Wm.  W.  Phillips. 

Interrogated  by  Mr.  Hubbell,  the  witness  said:  I  am  a  minister  of 
the  Presbyterian  Church  of  the  Presbytery  of  New  York.  I  was  a 
commissioner  to  the  General  Assembly  of  1838.  I  was  present  at 
the  opening  of  the  General  Assembly  on  the  17th  day  of  May  of 
that  year.  I  occupied  a  pew  next  to  the  wall  of  the  church  at  the 
bottom  of  the  pulpit-stairs.  The  place  which  I  occupied  was  near 
the  south-west  corner  of  the  house.  From  the  close  of  the  religious 
exercises,  and  after  the  moderator  had  opened  the  meeting  of  the 
Assembly  with  prayer,  a  very  short  time  elapsed  until  Dr.  William 
Patton  arose  and  made  his  motion,  stating  that  he  desired  to  offer 
certain  resolutions  which  he  held  in  his  hand.  The  moderator  stated 
to  him  that  his  motion  was  out  of  order  at  this  time.  He  presented 
himself  to  the  house,  and  addressed  the  moderator,  saying  "  I  hold 
in  my  hand  certain  resolutions  which  I  desire  to  offer  for  the  con- 
sideration of  the  Assembly."  The  moderator  told  him,  "  you  are 
out  of  order.  The  first  business  is  the  report  of  the  clerks  on  the 
roll."  Dr.  Patton  said  his  resolutions  had  relation  to  the  roll.  The 
moderator  then  said,  "  your  motion  is  out  of  order  at  this  time." 
He  appealed  from  the  decision,  and  the  moderator  pronounced  the 
appeal  to  be  out  of  order,  as  he  said  there  was  then  no  house  to 
appeal  to.  Dr.  Patton  then  took  his  seat,  and  the  moderator  di- 
rected the  clerks  to  proceed  with  the  report  on  the  roll.  The  report 
was  read  by  Mr.  Krebs,  the  permanent  clerk.  Dr.  Erskine  Mason 
arose,  and  addressing  the  moderator,  said  he  held  in  his  hand  cer- 
tain commissions  which  he  wished  to  have  added  to  the  roll.  The 
moderator  asked  whether  they  had  been  presented  to  the  clerks, 
and  whether  the  commissioners  therein  named  were  from  presby- 
teries which  were  belonging  to  or  in  connexion  with  the  General 
Assembly  of  the  Presbyterian  Church,  at  the  close  of  its  session  in 
1837.  Dr.  Mason  replied  that  they  were  from  the  presbyteries 
within  the  bounds  of  the  four  Synods  of  Utica,  Geneva,  Genessee, 
and  Western  Reserve.  The  moderator  then  said,  your  motion  is 
out  of  order,  as  it  was  commissions  of  a  different  kind  were  called 
for.     Dr.  Mason  then  said  that  he  would  respectfully  appeal  from 


196 

the  decision  of  the  moderator.  The  moderator  decided  that  the 
appeal  was  out  of  order.  Mr.  Squier  then  rose,  and  said  he  held 
in  his  hand  a  commission  which  had  been  tendered  to  the  clerks, 
and  which  they  had  refused  to  receive,  and  that  he  now  tendered 
it  there,  and  demanded  his  seat  as  a  member  of  that  house.  The 
moderator  inquired  of  him  what  presbytery  his  commission  was 
from.  Mr.  Squier  replied  that  it  was  from  the  Presbytery  of  Ge- 
neva.    The  moderator  then  said,  "  We  do  not  know  you,  sir." 

Mr.  Cleaveland  then  rose,  and  read  a  paper,  the  contents  of  which 
I  did  not  hear  distinctly,  though  1  heard  some  detached  sentences. 
I  heard  him  say  "Counsel  learned  in  the  law,"  and  something  con- 
cerning the  organization  of  the  General  Assembly  in  the  shortest 
time  possible.  I  could  not  hear  all.  There  were  incessant  calls 
to  order  from  the  moderator  and  several  members.  Although  I 
had  determined  to  keep  still,  I  found  myself  twice  saying  in  an 
under  tone,  I  hope  we  shall  have  order.  Some  extended  their 
hands,  and  said  "Hush,  hush,"  and  some  said  "Oh  shame!  shame!" 
I  could  see  Mr.  Cleaveland  from  where  I  stood,  and  heard  him 
make  a  motion,  as  I  understood  it,  that  Dr.  Beman  take  the  chair. 
I  heard  a  vote  of  "  aye !"  very  loud,  and  one  shrieking  voice  above 
the  rest.  The  members  in  the  neighbourhood  where  I  sat  did  not 
vote  on  his  motion.  Immediately,  there  was  a  movement  in  the 
aisle,  and  Dr.  Beman  came  out  of  the  pew.  I  heard  a  motion  made 
for  the  appointment  of  clerks,  but  do  not  recollect  that  I  heard  their 
names.  I  heard  no  reversal  of  the  questions,  and  no  negative 
votes.  I  did  not  hear  the  name  of  Dr.  Fisher  nominated  as  mode- 
rator, nor  knew  I  that  he  had  been  appointed  until  I  was  so  inform- 
ed next  day.  I  think  I  heard  the  motion  for  adjournment.  I  heard 
no  prayer.  I  am  not  certain  in  regard  to  the  adjournment,  for  a 
proclamation  of  the  adjournment  was  afterwards  made  at  the  seve- 
ral doors  of  the  church.  I  do  not  know  by  whom  the  proclama- 
tion was  made.  The  movements  in  these  proceedings  were  very 
rapid.  I  am  not  able  to  judge  how  long,  but  should  say  that  the 
whole  time  occupied,  from  the  period  when  Mr.  Cleaveland  rose 
to  the  time  of  their  adjournment,  was  not  more  than  five  minutes. 
It  may  have  been  longer;  but  every  thing  was  done  as  rapidly  as 
possible.  During  this  time  there  was  much  confusion.  From  the 
time  of  the  motion  for  Dr.  Beman  to  take  the  chair,  some  were 
standing,  some  rushed  into  the  aisle,  and  most  of  these  remained 
standing.  My  impression  is,  that  there  were  some  ayes  came  from 
the  gallery.  The  place  that  I  occupied  was,  I  think,  one  step  above 
the  floor.  I  was  obliged  to  stand,  it  being  painful  for  me  to  sit ; 
on  this  account  I  chose  that  position,  which  I  occupied  during  most 
of  the  time  that  the  General  Assembly  was  in  session.  Those  who 
retired,  went  out  in  a  crowded  manner,  very  rapidly.  There  was 
a  great  press,  whether  by  members  of  the  body,  or  others,  I  cannot 
say.  There  was  a  great  dust  after  they  got  out  of  doors.  There 
was  a  rising  in  the  gallery,  manifesting  great  interest.  There  may 
have  been  a  noise  there;  indeed,  there  must  have  been,  from  the 
persons  who  occupied  it  rising  from  their  seats,  coming  forward, 
and  looking  over.     I  suppose  the  Old  School  party  were  generally 


197 

in  the  part  of  the  house  near  where  I  was.  We  had  occupied  the 
house  from  nine  o'clock  in  the  morning,  for  prayer  and  consulta- 
tion, and  remained  in  the  seats  which  we  had  then  taken  until  the 
closing  of  the  Assembly.  I  heard  no  votes  from  the  Old  School, 
upon  any  of  the  questions  put  by  members  of  the  other  party. 
There  were  cries  of  order  from  the  different  individuals  among 
them,  as  well  as  from  the  moderator. 

Cross-examination. — Interrogated  by  M:  Meredith,  the  witness 
said:  I  was  not  ordained  as  a  minister  of  the  Presbyterian  church. 
I  was  ordained  by  the  Associate  Reformed  Presbytery  of  New 
York,  in  the  year  1818,  but  was  installed,  in  1826,  as  pastor  of  the 
First  Presbyterian  Church  in  the  city  of  New  York.  I  came  into 
the  Presbyterian  Church  in  1822,  in  accordance  with  the  Plan  of 
Union  agreed  to  between  the  Presbyterian  Church  and  the  Asso- 
ciate Reformed  Church  in  that  year.  I  was  not  re-ordained  when 
I  came  into  the  Presbyterian  Church.  The  Associate  Reformed 
Church  united  with  the  General  Assembly  of  the  Presbyterian 
Church,  and  was  acknowledged  as  a  constituent  part  thereof.  The 
Associate  Reformed  Church  was  Presbyterian ;  quite  as  much  so, 
we  thought,  as  the  General  Assembly.  The  Confessions  of  Faith 
and  Catechisms  were  essentially  the  same.  Both  adhered  to  the 
Calvinistic  creed.  One  of  the  conditions  of  this  union,  agreed  to, 
was,  that  we  of  the  Associate  Reformed  Church  should  retain  our 
distinct  organization  as  a  presbytery.  There  may  have  been  some 
slight  difference  in  the  phraseology  of  the  two  Confessions  of  Faith, 
but  there  was  no  substantial  difference ;  they  were  substantially  the 
same.  The  Westminster  Confession  and  Catechisms  are  the  stan- 
dards of  both. 

Question  by  Mr.  Wood. — Was  there  not  some  difference  in  the 
mode  of  administering  the  rite  of  baptism,  and  in  receiving  the  com- 
munion, as  prescribed  by  the  Confession  of  Faith  of  the  Associate 
Reformed  Church. 

Witness. — There  was  a  slight  difference,  I  think.  I  still  use  the 
form  I  always  have,  in  the  admission  of  members,  and  in  baptism. 
I  suppose  these  forms  do  differ  from  those  of  the  General  Assembly. 
There  is  a  directory  in  the  book  of  the  Associate  Reformed  Church. 
I  did  not  continue  to  use  this  directory,  but  have  used  that  of  the 
General  Assembly  since  I  was  installed.  I  have  not  changed  ifiy 
doctrinal  views  at  all,  but  continue  to  refer  to  the  same  Confession 
of  Faith,  and  Catechism,  because  they  are  the  same  in  both  deno- 
minations. 

Mr.  Meredith  handed  to  the  witness  the  book  of  the  Associate 
Reformed  Church,  and  requested  him  to  see  if  that,  (pointing  to 
an  article  in  the  book,)  is  the  act  of  adoption  of  the  Confession 
of  Faith  by  the  Associate  Reformed  Church. 

Witness  said  there  was  subsequently,  I  think,  an  alteration  in  that 
part  which  relates  to  civil  magistrates.  I  think  this  is  not  the 
Confession  now  used.  The  doctrines  are  essentially  the  same; 
indeed,  the  Confession  is  the.  same,  with  the  difference  mentioned. 
I  am  not  prepared  to  answer  whether  this  is  the  act  of  adoption. 
The  Confession  was  subsequently  changed  in  the  particular  which 

17* 


198 

I  have  noticed;  perhaps  there  was  another  act  of  adoption  at  thaS 
time. 

The  defendants  called  Mr.  Stacy  G.  Potts.  Interi'ogated  by  Mr. 
Hubbell,  the  witness  said  :  I  reside  in  the  city  of  Trenton,  New 
Jersey.  I  was  in  Philadelphia  in  May,  1838.  I  was  present  at 
the  organization  of  the  General  Assembly  on  the  17th  day  of  that 
month.  I  went  to  the  church  in  Ranstead  court,  directly  from  the 
steamboat,  about  half  an  hour  before  the  commencement  of  the 
preliminary  religious  exercises.  I  took  my  seat  in  one  of  the  wall 
pews  toward  Fourth  street.  I  entered  at  the  east  door  of  the  church, 
and  took  my  seat  beyond  the  centre  of  the  church  from  the  mode- 
rator's chair.  Every  thing  was  perfectly  quiet  until  the  religious 
exercises  had  closed,  and  the  moderator  had  taken  the  usual  station 
occupied  by  him  when  presiding  over  ihe  deliberations  of  the 
General  Assembly.  Shortly  afterwards,  a  gentleman  arose  and 
made  some  remarks,  but  the  noise  at  the  time  prevented  me  from 
hearing  what  passed.  In  a  short  time  he  took  his  seat.  I  then 
heard  the  clerk,  as  I  supposed,  call  over  the  roll  of  the  General 
Assembly.  There  was  ihen  another  interruption  by  a  gentleman 
whom  I  did  not  know.  From  that  time  the  confusion  in  the  part 
of  the  house  where  I  was,  increased  greatly.  My  view  was  so 
intercepted  by  the  people  standing  up  that  I  could  not  see  what  was 
going  on.  As  I  perceived  that  it  was  a  scene  of  some  interest,  I 
endeavoured  to  ascertain  what  was  going  on,  but  could  not.  I  then 
got  up  myself  and  remained  standing  in  my  place.  The  first  sound 
which  I  could  distinctly  understand  was  a  very  loud  "  aye,"  which 
came  from  difterent  parts  of  the  house,  and,  I  think,  from  the  gal- 
leries, and  from  females.  I  shortly  afterwards  heard  another  very 
loud  "aye."  I  did  not  hear  any  motion,  nor  knew  what  the  aye 
meant.  It  appeared  to  be  expressing  a  visible  assent  to  something. 
I  was  located  so  that  I  could  not  hear  what  was  going  on,  but  I 
saw  several  individuals  move  into  the  aisle.  It  was  impossible  to 
hear,  where  I  was  seated,  a  syllable  of  what  was  spoken  in  ordinary 
language.  I  did  not  know  one  person  in  the  vicinity  where  I  stood, 
and  caimot  tell  whether  any  person  voted  who  was  not  a  member. 
I  think  there  were  two  or  three  oyes,  at  short  intervals :  two  or  three 
votes  were  taken  in  this  way.  I  heard  no  question  proposed  during 
thfe  whole  time.  I  think  that  I  heard  a  few  scattering  noes  on  one 
occasion.  Whether  this  was  on  the  first  or  subsequent  questions  I 
don't  know.  I  saw  a  crowd  near  the  centre  of  the  church.  I  was 
located  in  a  wall  pew,  a  little  farther  toward  Market  street.  The 
ends  of  the  pews  are  against  the  wall.  The  next  thing  which  I 
noticed  was  a  general  movement  toward  the  doors.  In  a  very 
short  time  after  this  they  went  out.  Immediately  afterwards  a 
gentleman  presented  himself  at  the  door  and  })roclaimed,  in  a  loud 
voice,  that  the  General  Assembly  of  the  Presbyterian  Church  had 
adjourned.  He  made  a  similar  proclamation  at  three  doors  of  the 
church.  At  the  third  door,  appearing  to  be  a  little  hoarse,  he 
cleared  his  throat  and  repeated  it  very  loudly.  I  heard  no  motion 
for  adjournment ;  nothing  at  all  of  it. 


199 

Cross-examined. — Question  by  Mr.  Meredith. — You  belong  to  thd 
Old  School  party,  I  suppose. 

Witness. — 1  am  a  member  of  the  Old  School  Church  at  Trenton. 

Defendants  called  Dr.  William  Harris.  Interrogated  by  Mr.  Huh- 
hell,  the  witness  said:  I  attended  in  the  church  on  Ranstead  court, 
on  the  17th  of  May,  1838,  as  a  spectator.  I  stood  in  the  west  aisle, 
near  the  south-west  corner  of  the  church,  in  front  of  Dr.  Phillips, 
and  near  him.  I  heard  the  moderator  call  the  house  to  order,  and 
state  that  the  first  business  was  the  reading  of  the  roll.  He  directed 
the  clerk  to  read,  but  the  clerk  did  not  begin  immediately,  and  a 
gentleman  rose,  saying  that  he  had  a  resolution  to  ofl^er.  He  pre- 
mised his  remarks  by  "  Mr.  Moderator."  I  was  not  personally 
acquainted  with  the  gentleman,  but  learned  that  it  was  Dr.  Patton. 
The  moderator  said,  "  Sir,  you  are  out  of  order  at  present."  The 
gentleman  said,  "I  appeal  from  your  judgment,  sir."  The  modera- 
tor decided  that  the  appeal  also  was  out  of  order,  and  Dr.  Patton 
sat  down,  and  the  clerk  proceeded  to  read  the  roll.  When  he  had 
finished,  another  gentleman  rose,  who,  as  I  learned  from  a  by- 
stander, was  Dr.  Mason.  He  said  that  he  had  some  commissions 
to  offer,  which  had  been  presented  to  the  clerks  and  refused.  Dr.. 
Elliott  asked  him  where  the  commissions  were  from.  He  answer- 
ed, I  think,  that  they  were  from  the  Synods  of  Utica,  Geneva,  Ge- 
nessee,  and  the  Western  Reserve.  Dr.  Elliott  then  said,  "Sir,  you 
are  out  of  order  at  present."  Dr.  Mason  replied,  "  Mr.  Moderator, 
with  due  respect,  I  must  appeal."  The  moderator  said  that  the 
appeal  was  out  of  order.  A  third  person,  who,  I  learned,  was  Mr, 
Squier,  then  rose.  He  said  he  had  a  commission  to  offer,  which 
had  been  rejected  by  the  clerks,  from  the  Presbytery  of  Geneva. 
The  moderator  asked  him  vidiether  that  presbytery  was  in  the  Synod 
of  Geneva.  Mr.  Squier  answered  that  it  was.  The  moderator  said, 
"  Sir,  we  do  not  know  you."  Afterwards  a  fourth  gentleman  arose, 
whom  I  knew  to  be  Mr.  Cleaveland:  I  had  seen  him  before  in  the 
General  Asseaibly.  He  was  in  a  diagonal  direction  from  me,  and 
so  far  distant  that  I  could  not  hear  distinctly  all  he  said  ;  but  I  heard 
distinctly  the  words,  "  by  the  advice  of  counsel  learned  in  the  law," 
and  "  about  to  proceed  to  organize  the  Assembly."  After  a  few 
remarks,  he  began  to  read.  The  moderator  called  him  to  order, 
but  he  continued.  The  moderator  called  him  to  order  three  or  four 
times,  but  he  proceeded.  Dr.  Elliott  called  to  order  again,  rapped 
on  the  desk  with  his  hammer,  and  then  sat  down.  Mr.  Cleaveland 
moved  that  Dr.  Beman,  or  Beecher,  should  take  the  chair,  and 
said,  "  Those  who  are  in  favour  will  say,  aye."  There  was  a  gene- 
ral "  Aye !"  in  the  part  of  the  house  where  Mr.  Cleaveland  was. 
After  that  1  did  not  distinctly  hear  any  motion,  but  the  words, 
"Those  who  are  in  favour  will  say,  aye,"  and  then  the  "Ayes" 
very  distinctly.  I  did  not  hear  Mr.  Cleaveland's  question,  or  any 
other,  reversed.  I  did  not  hear  any  negative  votes.  It  was  a  con- 
fused, tumultuous  scene.  The  tumult  arose  from  the  cries  of  "Aye!" 
in  an  unusual  loud  voice,  from  persons  standing  on  the  seats,  and 
from  the  whole  Assembly  being  in  disorder.  Nearly  all  the  Old 
School  members  were  sitting  in  their  seats:  there  were  a  few  stand- 


200 

ing  up  on  either  side  of  the  pulpit,  near  the  wall ;  but  all  those  in  the 
main  body  of  the  house  were  seated.  They  did  not  join  in  the  votes. 
There  were  some  few  around  me,  who  said,  in  an  under  tone,  "  I 
hope  we  shall  have  order,"  and  "  What  a  shame !"  or  something  of 
that  kind. 

Cross-examination. — In  answer  to  a  question  by  Mr.  Randall,  the 
witness  said :  I  am  an  elder  in  the  Tenth  Presbyterian  Church,  in 
this  city,  Mr.  Boardman's  church. 

Defendants  called  the  Reii.  Samuel  £.  Wilson,  D.  D.  Interrogated 
by  Mr.  Huhbell,  the  witness  said :  I  attended  at  the  organization  of 
the  General  Assembly  of  1838.  I  attended  as  a  commissioner.  I 
was  present  in  the  church  in  Ranstead  court  on  the  day  and  at  the 
time  of  the  organization.  I  sat  on  the  first  row  of  seats,  nearest 
where  the  moderator  stands.  I  sat  on  the  west  side  of  the  middle 
aisle,  on  the  front  seat. 

Mr.  Huhhell. — Did  you  see  or  hear  Mr.  Cleaveland  when  he  was 
speaking? 

Sitting  as  I  was,  with  my  face  to  the  moderator,  I  did  not  see 
him  rise,  but  I  heard  a  gentleman  whom  I  was  told  was  Mr. 
Cleaveland,  speaking  or  reading  something,  but  I  could  not  under- 
stand what  it  was.  I  could  only  hear  pretty  distinctly  some  of  the 
first  words  which  he  said.  Very  soon  after  he  commenced  the 
moderator  called  him  to  order,  and  repeated  his  call  to  order  more 
than  once.  Another  member,  one  who  sat  near  me,  also  rose  and 
called  him  to  order.  This  produced  confusion,  which  prevented  me 
from  hearing  what  he  said.  Some  part  of  what  he  said  I  heard, 
and  some  I  did  not  hear.  Perhaps  I  should  here  explain  another 
reason  for  my  not  hearing.  There  was  a  considerable  commotion 
in  that  part  of  the  house  where  Mr.  Cleaveland  stood,  at  times  after 
he  was  called  to  order  and  persevered.  Some  persons  standing  on 
the  floor,  and  some,  as  I  suppose,  standing  on  the  seats,  altogether 
made  a  good  deal  of  noise.  I  do  not  think  that  I  could  state  dis- 
tinctly any  proposition  made  by  Mr.  Cleaveland.  I  heard  him  but 
indistinctly.  I  am  not  able  to  say  that  any  thing  was  proposed  dis- 
tinctly. But  it  appeared  that  something  had  been  proposed,  as 
there  was  a  vote  taken.  I  heard  the  vote  distinctly;  a  number  of 
unusually  loud  "  Ayes,"  and  one  voice  much  louder  than  the  rest, 
as  has  been  stated  by  others.  I  heard  no  reversal  of  the  question. 
I  do  not  recollect  that  I  heard  any  voice  saying  "  No." 

Question  by  Counsel. — Did  you  endeavour  to  hear  Mr.  Cleave- 
land? 

Witness. — I  cannot  say  that  I  did  endeavour  to  hear  him.  I  could 
not  have  heard  him  if  I  had  tried. 

Counsel. — Did  you  vote  ? 

Witness. — I  did  not  vote. 

Mr.  Huhbell. — Why  did  you  not  endeavour  to  hear? 

This  question  was  objected  to  by  the  opposite  counsel. 

Judge  Rogers. — You  may  ask  whether  he  had  an  opportunity  of 
voting. 

Mr.  Ingersoll. — I  will  put  the  question  in  this  form :  Were  you 
prevented,  by  any  circumstance,  from  voting  ? 


201 

Dr.  Wilson. — 1  could  not  have  voted,  for  no  enunciation  of  a 
question  reached  my  ears.  I  believe  my  hearing  is  as  good  as 
usual. 

Mr.  Ingersoll. — I  now  propose  to  ask,  whether,  if  he  had  heard  a 
motion  made,  not  by  the  chair,  but  by  some  person  out  of  the 
chair,  he  would  have  voted '' 

Objection  was  made  to  this  question. 

Judge  Rogers. — You  must  confine  yourself  to  what  was  actually 
done. 

Examination  continued. — My  back  was  towards  Mr.  Cleaveland 
•when  I  first  heard  him  speak,  but  I  naturally  turned,  to  get  a  view 
of  him,  and  hear  what  he  said.  When  I  turned,  I  think  he  was 
reading  from  a  paper  in  his  hand.  I  thought  he  did  not  hold  it 
very  firmly  in  his  hand.  Partly  from  his  agitation,  and  partly  fromi 
the  noise,  I  had  but  a  confused  idea  of  what  he  said.  I  was  near 
the  division  line  between  the  two  ranges  of  pews.  The  confusion 
and  tumult,  after  this,  increased,  particularly  in  the  back  part  of  the 
house.  I  can't  say  that  I  heard  any  thing  more,  distinctly,  the  con- 
fusion was  so  great.  I  can  say,  only,  that  there  was  some  kind  of 
voting,  but  I  don't  know  upon  what  questions:  for  so  far  was  I  in 
the  dark,  that  I  didn't  know  that  Dr.  Fisher  was  chosen  moderator 
until  it  was  reported  next  day.  There  was  a  rush  of  some  persons 
into  the  aisle,  after  Mr.  Cleaveland  commenced.  The  adjournment 
took  place  with  continued  noise  and  tumult;  the  noise,  for  a  little 
while,  was  considerably  increased,  by  persons  descending  from  the 
galleries,  as  those  who  formed  the  religious  body  in  the  First 
Church,  passed  out  of  the  doors  below. 

Cross-examined  hy  Mr.  Meredith. — I  am  a  minister,  and  was  a 
member  of  the  Assembly  of  1838.  I  am  one  of  the  Old  School 
party. 

The  defendants  called  the  Rev.  Samuel  Miller,  D.  D. 

Interrogated  by  Mr.  Hubbell,  the  witness  said:  I  was  present  at 
the  organization  of  the  General  Assembly  of  1838,  but  was  not  a 
commissioner.  I  was  on  the  south-west  side  of  the  church,  about 
twenty  or  twenty-five  feet  left  of  the  moderator,  I  was  standing  on 
the  floor.  Mr.  Cleaveland  rose,  holding  a  paper  in  his  hand,  which 
he  seemed  to  be  attempting  to  read.  There  were  cries  of  order. 
He  began  in  a  loud  tone,  but  seemed  to  experience  great  difficulty 
in  proceeding.  1  believe  that  he  did  not  read  it  all.  The  contents 
of  the  paper,  so  far  as  I  heard  them,  were,  that  they  had  been  ad- 
vised by  counsel  learned  in  the  law,  that  at  that  time  and  place, 
they  must  organize  an  Assembly,  and  they  would  proceed  to  do  it 
with  as  little  interruption,  in  as  short  a  time,  with  as  few  words  as 
possible,  and  that  he  hoped  they  would  not  be  considered  as  acting 
in  a  discourteous  manner.  He  then  made  his  motion  to  call  Dr. 
Beman  to  the  chair.  There  was  at  this  time  considerable  tumult 
and  disorder  and  calls  of  order.  What  Mr.  Cleaveland  said,  did 
not  by  any  means  appear  to  be  distinctly  uttered.  With  the  ex- 
ception of  a  few  calls  to  order,  the  disorder  was  in  that  part  of  the 
house  occupied  by  the  speaker.  I  heard  no  vocal  utterance  except 
these  calls  to  order  in  the  part  of  the  house  where  1  was.     Neither 


202 

proposition  was  reversed ;  the  nays  were  not  called  for  on  either 
vote.  After  moving,  without  reversing  the  question,  that  Dr.  Beman 
take  the  chair,  I  think  that  he  made  a  similar  motion  without  reversing 
the  question,  that  Dr.  Mason  and  Mr.  Gilbert  be  appointed  clerks. 
After  this  Dr.  Beman  went  into  the  aisle  and  moved  a  little  down 
the  aisle  and  appeared  to  place  himself  in  the  position  of  a  presiding 
officer.  Those  engaged  in  these  transactions  moved  down  the 
aisle  towards  the  door  opposite  the  pulpit.  I  then  heard  an  indis- 
tinct sound  but  I  heard  no  distinct  articulation  after  this.  What 
was  the  result,  or  what  occurred  after  he  took  the  chair,  I  am  unable 
to  testify  of  my  own  knowledge.  I  am  not  able  exactly  to  define 
the  position  of  the  Old  School  party,  but  the  great  part  of.  them 
occupied  that  part  of  the  house  in  which  I  was,  and  the  correspond- 
ing part  on  the  right  side  of  the  moderator,  together  with  the  front 
pews.  I  think  that  I  was  in  the  midst  of  them.  I  did  not  hear  a 
vote  from  any  of  the  Old  School  party.  So  far  as  I  could  hear 
there  was  not  an  Old  School  man  in  the  whole  house  who  voted. 
I  did  not  hear  any  negative  votes  on  either  motion.  I  think  there 
were  some  in  the  galleries  voted.  When  the  vote  of  aye  was  given, 
there  was  something  in  its  character  which  satisfied  me  that  some 
of  the  votes  came  from  the  gallery.  There  was  a  lightness  and 
shrillness  of  voice  which  did  not  appear  as  coming  from  consider- 
ate, serious  and  dignified  men.  There  was  certainly  a  character 
about  it  to  which  I  was  altogether  unaccustomed.  It  would  be 
difficult  to  make  an  estimate  of  the  time  occupied  by  these  trans- 
actions as  the  whole  movement  was  so  thrilling.  But  I  suppose 
that  the  time  occupied  was  not  more  than  five  or  six  minutes.  I 
did  not  learn  that  Dr.  Fisher  had  been  appointed  moderator  until 
the  next  day,  and  I  was  not  at  all  sensible  of  that  part  of  the  ope- 
rations. I  suppose  that  the  General  Assembly  has  been  held  ten 
or  fifteen  times  in  that  church,  but  this  is  only  a  rude  guess.  I 
think  I  have  been  a  member  of  the  Assembly,  in  that  house,  half  a 
dozen  times.  The  fixtures  are  always  in  the  same  places.  They 
are  put  up  I  suppose  by  the  janitor,  at  the  direction  and  the  expense 
of  the  General  Assembly.  I  know  the  janitor  was  always  consi- 
dered the  proper  man  to  be  called  upon,  to  get  a  chair  for  any  in- 
dividual that  needed  one,  and  he  always  did  it. 

Cross-examined  by  Mr.  Meredith,  the  witness  said :  I  have  no 
pastoral  charge,  am  a  professor  in  the  Theological  Seminary  at 
Princeton.  I  remained  the  whole  time  in  the  same  place.  Do  not 
recollect  crossing  over  to  speak  to  the  moderator,  and  am  persuaded 
that  I  did  not.  I  am  entirely  confident,  that  I  did  not  pass  hastily 
to  the  moderator,  and  ask  him  not  to  permit  them  to  be  organized : 
no  such  thing  occurred.  If  it  had  occurred  I  am  sure  that  I  should 
recollect  it. 

Dr.  Wilson,  re-called  by  respondents,  said:  Dr.  Elliott's  reply  to 
Dr.  Mason,  when  he  made  his  motion,  was,  "  It  is  not  in  order  at 
this  time."     I  think  those  were  the  exact  words. 

Cross-examined  by  Mr.  Randall. — As  soon  as  the  Committee  of 
Commissions  had  made  their  report,  the  moderator  called  for  other 
commissions.     It  was  immediately  before  Dr.  Mason  rose,  that  he 


203 

had  made  this  announcement.  He  had  called  for  commissions  that 
had  not  been  presented,  but  Dr.  Mason,  in  his  explanation,  said, 
that  those  he  offered  had  been  rejected  by  the  Committee  of  Com- 
missions. The  kind  which  he  offered  was  not  that  that  was  called 
for. 

Mr.  Meredith. — Was  it  not  commissions  which  had  not  been  en- 
rolled that  the  moderator  called  for  ? 

Witness. — I  am  not  certain  that  it  was  not,  but  I  believe  that  by 
this  the  same  thing  would  have  been  understood.  I  cannot  say, 
but  I  think  that  it  was  not  commissions  which  the  committee  had 
rejected. 

By  Mr.  Meredith. — I  was  not  a  member  of  the  committee  to  pre- 
pare a  minute  of  these  transactions.  I  presume  that  I  approved  of 
the  minute. 

Mr.  Meredith. — What  was  the  exact  phraseology  used  by  the 
moderator,  when  he  made  the  call  for  other  commissions  ? 

Witness. — I  have  no  distinct  recollection  of  the  phraseology  of 
the  moderator.     I  cannot  tell  what  were  the  exact  words  which  he 
used,  when  he  made  the  call  for  other  commissions. 
Rev.  Isaac  V.  Brown,  called  by  the  respondents. 
Interrogated  by  Mr.  Hubbell,  the  witness  said :  I  am  a  clergyman 
in  communion  with  the  Presbyterian  Church.     I  was  not  a  com- 
missioner to  the  General  Assembly  of  1838.     I  attended  at  the  or- 
ganization.    I  was  located  immediately  in  the  rear  of  Mr.  Cleave- 
land,  about  five  feet  distance  from  him.     There  was  one  pew  be- 
,  tween  his  and  mine. 

(Witness  here  explained  the  position  which  he  occupied,  to  the 
jury,  by  reference  to  a  plan  of  the  church  which  was  exhibited  on 
the  occasion.) 

I  am  not  certain  as  to  the  door  I  came  in  at,  but  as  to  my  position 
in  relation  to  that  of  Mr.  Cleaveland,  I  am  perfectly  certain.  Mr. 
Cleaveland  rose  with  a  paper  in  his  hand.  I  did  not  hear  him  say 
"  Mr.  Moderator."  His  back  was  towards  me  at  the  time,  and  his 
face  to  the  moderator.  I  did  not  hear  his  precise  language.  He 
turned  a  little  round  from  the  chair  toward  the  right,  which  gave 
me  an  opportunity  to  see  the  handwriting  of  the  paper  which  he 
held  in  his  hand,  and  also  to  hear  what  he  read.  J  can  mention 
distinctly  the  main  points  contained  in  the  paper  read  by  Mr. 
Cleaveland  nearly  in  their  order.  He  stated  that  "  we  are  about 
going  to  form  a  new  body.  He  then  expressed  an  apology  for  the 
interruption  which  he  made.  He  said  they  were  going  to  do  it  in 
the  shortest  time,  and  with  the  fewest  words  possible.  He  further 
said,  that  they  were  going  to  do  it  in  consequence  of  the  advice  of 
counsel  learned  or  eminent  in  the  law.  One  or  other,  or  both  forms 
of  expression,  he  certainly  used.  He  said  their  object  was  to  obtain 
certain  legal  advantages.  These  were  his  words  as  he  uttered  them, 
and  that  is  about  the  substance  of  what  I  recollect.  Then  imme- 
diately, and  hastily,  he  moved  that  Dr.  Beman  should  take  the  chair, 
and  immediately  put  the  question.  There  was  no  reversal  of  the 
question,  I  am  very  confident ;  I  heard  nothing  like  it.  There  was 
not  time,  between  the  first  and  second  motion,  to  admit  of  it.    When 


204 

he  moved  that  Dr.  Beman  should  take  the  chair,  there  was  a  very 
tumultuous  response  of  "Aye!"  in  certain  parts  of  the  house.  I 
think  there  were  votes  from  the  gallery,  voices  that  clearly  mani- 
fested that  they  did  not  belong  to  members  of  the  General  Assem- 
bly. They  were  shrill  and  squeaking,  more  like  female  voices,  from 
the  north-west  end  of  the  house,  in  the  rear  of  the  body.  There 
was  a  considerable  volley  from  that  quarter,  and  some  were  very 
like  female  voices,  or,  if  not  so,  came  from  minor  youth.  There 
was  a  very  promiscuous  assembly,  of  all  sexes,  and  all  ages.  There 
were  a  few  gentlemen  occupying  the  seats  immediately  in  my  rear 
whom  I  did  not  know.  I  heard  no  negative  votes  at  all.  After 
tl.is  a  motion  was  made  for  the  appointment  of  clerks.     I  heard  the 

name  of  Dr.  E.  W.  Gilbert,  and  Dr. ,  the  name  I  could  not 

distinguish,  nor  who  made  the  motion,  owing  to  the  confusion  at 
the  moment,  producing  some  embarrassment;  but  I  supposed,  by 
the  sound  of  his  voice,  it  was  made  by  the  same  man.  That  motion 
was  put  and  carried  in  the  same  manner,  but  without  reversal. 
Immediately  after,  there  was  a  sudden  call  or  explanation,  the 
words  of  which  I  do  not  remember,  but  the  object  of  it  was,  to  pro- 
duce a  movement  among  those  who  acted  in  the  scene,  towards  the 
north-western,  or  the  western  part  of  the  house.  Immediately  there 
was  a  very  hasty  rush  towards  that  part.  There  was  an  assembly 
thus  created  very  speedily,  at  a  distance  from  the  focus  of  their  pre- 
vious operations  of  about  twenty-five  feet.  I  endeavoured  to  ascer- 
tain the  distance,  and,  without  success,  what  they  were  doing.  I 
rose  up,  and  got  on  the  seat,  to  discover,  if  possible,  what  the  se- 
ceding members  were  about.  I  listened  as  closely  as  I  could,  but 
the  noise  and  tumult  were  such,  as  to  prevent  my  hearing  any  thing 
at  all.  In  a  very  few  minutes  there  was  a  loud  outcry,  first  near 
the  central  point  of  the  body,  again  at  the  outskirts,  and  near  the 
east  door,  giving  notice  that  the  body  which  had  recently  organized, 
were  about  retiring  to  another  church,  Mr.  Barnes's  church,  I  think; 
I  don't  know  the  style  it  goes  by  in  this  city.  I  heard  Dr.  Mason's 
motion  relating  to  the  documents,  which  he  held  in  his  hand.  Dr. 
Elliott  replied  to  him,  "  You  are  out  of  order  at  this  time,"  distinctly 
and  emphatically ;  these  were  the  very  words. 

Cross-examined  by  Mr.  Meredith. — I  have  no  pastoral  charge  at 
present.  I  reside  at  Lawrenceville,  in  New  Jersey.  I  am  estimated 
a  member  of  the  Old  School  party. 

Witness. — Have  you  any  further  questions  to  ask  me  ? 

Mr.  Randall. — Nothing  further. 

Rev.  JVathan  G.  White,  called  by  the  respondents. 

Interrogated  by  Mr.  Hubhell,  the  witness  said :  I  was  a  delegate 
to  the  General  Assembly  of  1838.  I  am  a  clergyman,  settled  in 
M'Connelsburg,  in  Carlisle  Presbytery,  of  which  I  am  a  member. 
I  attended  at  the  organization,  on  the  17th  of  May.  I  was  in  the 
eastern  part  of  the  church,  about  four  pews  from  the  moderator, 
on  the  east  side  of  the  middle  aisle,  next  the  door  of  the  pew  open- 
ing into  that  aisle.  Mr.  Cleaveland  was  two  pews  behind  me.  He 
rose  with  a  paper  in  his  hand,  and  after  stating  something,  appeared 
to  read  from  the  paper.     I  supposed  him  to  have  uttered  about  one 


205 

sentence,  before  I  heard  what  he  was  saying.  About  a  moment 
had  elapsed.  He  said,  "  as  w^  have  been  advised  by  counsel  learned 
in  the  law,  that  a  proper  and  constitutional  General  Assembly  can- 
not be  organized  except  at  this  time  and  in  this  place,  or  house." 
This  was  the  only  sentence  which  I  heard  continuously.  Then  he 
made  something  like  an  apology,  and  used  the  words  "discour- 
teous," and  "  short  time;"  but  there  was  then  considerable  noise. 
I  thought  perhaps  he  did  not  read  all  that  was  on  the  paper,  be- 
cause, although  he  spoke  words  loud  enough  for  me  to  hear,  they 
were  not  heard  continuously,  so  as  to  form  a  sentence.  At  this 
time  he  was  turning  his  face  towards  the  middle  aisle,  and  away 
from  me.  He  then  made  a  motion  that  Dr.  Beman  should  take  the 
chair,  and  just  as  he  made  it,  a  number  near  and  around  him  rose, 
and  immediately  I  heard  a  very  loud  "Aye."  I  then  heard  Mr. 
Gilbert  and  Dr.  Mason  nominated  for  clerks.  I  did  not  hear  the 
motion  for  Dr.  Beman  to  take  the  chair  reversed.  I  heard  no  nega- 
tive voices.  Immediately  after  the  loud  "  Aye,"  the  names  of  Mr. 
Gilbert  and  Dr.  Mason  were  mentioned  for  clerks,  the  same  person 
putting  the  motion,  to  which  there  was  a  very  loud  response  of 
"Aye."  This  motion  was  not  reversed.  I  mean,  I  heard  no  re- 
versal. Then,  for  a  moment  or  so,  there  was  a  low  murmuring  of 
voices,  after  which  I  heard  again  a  very  loud  "  Aye."  Soon  after, 
those  who  were  standing  in  the  aisle,  and  on  the  seats,  and  even 
on  the  backs  of  the  pews,  as  some  of  them  were,  commenced  mov- 
ing towards  the  door,  and  out  of  the  house,  in  a  very  hurried  man- 
ner. When,  as  I  suppose,  about  one-third  or  one-half  of  these  were 
out  of  the  door,  I  heard  a  loud  cry  at  the  door,  that  the  General 
Assembly  of  the  Presbyterian  Church  had  adjourned,  to  meet  in 
the  First  Presbyterian  Church,  on  Washington  Square.  This  was  re- 
peated by  a  middle-aged  looking  man,  standing  in  the  lobby,  and  was 
also  repeated  by  him,  or  some  one  else,  at  the  other  doors.  The  cries 
of  "Aye"  came  principally  from  persons  standing  in  the  immediate 
neighbourhood  of  Mr.  Cleaveland,  and  also  from  some  standing  in 
a  north-west  direction  from  me.  I  had  now  turned  round,  with  my 
face  toward  Mr.  Cleaveland.  I  cannot  say  certainly  that  any  of 
the  ayes  were  from  the  gallery.  There  was  noise  in  the  gallery, 
on  the  west  side  of  the  house.  I  heard  Dr.  Patton  niake  a  motion; 
that  is,  he  held  certain  papers  in  his  hand,  and  said  he  wished  to 
ofier  a  resolution.  Dr.  Elliott  said  he  was  out  of  order,  that  the 
first  business  was  to  hear  the  roll,  as  it  had  been  made  out  by  the 
clerks.  Dr.  Patton  replied,  that  his  motion  had  reference  to  the 
roll,  and  that  it  could  be  put  in  a  moment,  as  he  wished  the  question 
taken  without  debate.  The  moderator  declared  him  out  of  order. 
Dr.  Patton  said  that  he  must  appeal  from  the  decision.  The  mo- 
derator said  that  the  appeal  also  was  out  of  order,  as  there  was  no 
house,  and  as  the  first  business  was  the  report  of  the  clerks  upon 
the  roll.  He  then  directed  Mr.  Krebs  to  proceed,  and  INIr.  Krebs 
reported  his  roll.  As  soon  as  he  had  done  with  the  report,  the  mo- 
derator stated  that  if  there  were  any  commissioners  from  churches 
within  our  bounds,  who  had  not  yet  had  an  opportunity  of  present- 
ing their  commissions  to  the  clerks,  now  was  the  time  to  present 
18 


206 

them.  Then  Dr.  Mason  of  New  York,  rose  and  said,  that  he  held 
in  his  hand  certain  commissions.  He  had  a  bundle  of  papers  in  his 
hand,  which  he  held  out,  and  said,  they  had  been  refused  by  the 
clerks,  and  that  he  now  tendered  them,  and  moved  that  the  names 
should  be  enrolled,  and  the  commissioners  allowed  to  take  their 
seats.  The  moderator  asked  where  the  commissions  were  from. 
Dr.  Mason  answered,  that  they  were  from  the  four  Synods,  naming 
them,  of  Utica,  Geneva,  Genessee,  and  the  Western  Reserve.  The 
moderator  replied,  you  are  out  of  order  at  this  time,  as  the  call  was 
made  for  commissions  of  a  difierent  character. 

Cross-examined  by  Mr.  Meredith. — I  am  attached  to  what  is 
denominated  the  Old  School  party. 

Mr.  Samuel  P.  Wilson  called  by  the  respondents.  Interrogated 
by  Mr.  Hubbell,  the  witness  said :  I  am  a  theological  student  of  the 
Princeton  Seminary.  1  belong  to  the  Old  School  party — if  I  may 
be  considered  worthy  of  that  honour. 

Counsel.    You  all  belong  to  the  Old  School  party  there,  I  suppose. 

Witness.  I  can't  say.  I  attended  at  the  organization  of  the  Ge- 
neral Assembly  of  1838.  I  attended  as  a  spectator.  I  had  a  com- 
panion with  me,  a  young  man ;  his  name  was  Twitchell.  My 
position  in  the  house  was  in  the  gallery,  near  to  the  place  occupied 
by  the  moderator.  When  I  came  into  the  house,  I  passed  through 
the  recess  into  the  graveyard,  and  entered  the  house  by  the  side 
door.  After  a  few  minutes,  I  went  into  the  gallery,  by  the  side  of 
the  pulpit.  My  companion  went  with  me,  or  at  least  we  sat  together. 
I  remember  the  motion  being  made  by  Mr.  Cleaveland,  that  Dr. 
Beman  act  as  moderator  until  a  new  moderator  should  be  chosen. 
I  recollect  that  he  rose,  holding  a  paper  in  his  hand,  with  his  face, 
at  first,  towards  the  moderator,  from  which  he  commenced  reading 
— or  certainly  appeared  to  read.  During  the  time,  whilst  he  was 
reading,  or  speaking,  he  turned,  so  that  his  side  was  toward  the 
moderator  and  his  face  toward  me,  and  concluded  by  saying,  "I 
move  that  Dr.  Beman  be  moderator,"  or  "  take  the  chair."  I  did 
not  hear  the  motion  seconded,  but  took  for  granted  that  it  was,  as 
it  was  put,  and  there  was  a  loud  affirmative  vote  of  aye.  I  did  not 
hear  the  question  reversed.  My  impression  at  the  time  was,  that 
it  was  not  reversed.  I  heard  no  negative  votes.  I  did  not  make 
any  memorandum  at  the  time  with  my  pencil,  but  remarked  to  my 
companion,  that  the  question  had  not  been  reversed.  My  impres- 
sion was  very  strong,  but  I  will  say,  merely,  I  did  not  hear  it.  The 
next  thing  that  I  heard,  after  the  gentleman,  whom  I  subsequently 
learned  was  Mr.  Cleaveland,  had  put  his  motion,  was  a  motion  that 
Dr.  Mason  and  some  one  else,  should  be  clerks.  He  put  this  mo- 
tion, I  thought  at  the  time;  and  J  still  think  that  he  did,  but  I  did 
not  hear  it  put.  The  first  thing  that  I  heard  after  the  names,  was 
the  response  of"  aye."  I  did  not  hear  him  propound  any  question, 
except  at  first.  I  heard  the  response  of  "  aye,"  but  no  reversal, 
and  not  any  noes.  There  was  no  change  in  Mr.  Cleaveland's  posi- 
tion, when  he  made  the  last  motion,  but  there  were  a  number  of 
persons  around  him,  who  had  risen  to  their  feet.  Then  I  observed 
a  person  moving  out  of  the  pew,  and  up  the  aisle,  and  a  gentleman 


207 

next  to  me  informed  that  it  was  Dr.  Beman.  He  stood  facing  the  • 
moderator,  about  one-half  of  the  way  down  the  aisle  from  the  pulpit. 
What  he  was  doing,  I  don't  know ;  I  could  see  his  lips  move,  but 
could  not  hear  what  he  was  saying.  There  was  considerable  confu-  ' 
sion  by  this  time  in  the  house.  At  first  it  was  noise,  but  after  Dr.  Be- 
man took  his  position,  it  was  rather  a  buzz,  and  a  confusion  of  voices, 
than  any  loud,  clamorous  noise.  The  next  thing  I  was  aware  of, 
was  a  general  movement  of  those  persons  engaged  in  these  pro- 
ceedings, and  a  number  of  the  spectators,  towards  the  north  door. 
After  the  great  mass  of  them  had  reached  the  door  and  passed 
through,  the  Rev.  Mr.  Beecher,  of  Jackson  Seminary,  in  Illinois, 
announced,  in  a  very  loud  tone,  that  the  General  Assembly  would 
meet  in  the  First  Presbyterian  Church.  The  same  was  repeated  by 
a  second  person  at  the  side  door,  by  a  person  somewhat  advanced 
in  life.  It  was  not  Dr.  Beecher.  I  have  seen  Mr.  Eliakim  Phelps 
here,  and  I  think  it  was  he;  that  is  my  impression. 

Counsel.     I  wish  now  to  turn  your  attention  to  the  time  when 
Dr.  Patton  rose.     State  what  then  took  place. 

Witness.     When  the  moderator  called  for  the  reading  of  the  roll 
by  the  clerk.  Dr.  Patton  rose.     I  cannot  tell  which  rose  first,  he 
or  the  clerk,  who  was  under  me.     He  said  that  he  had  certain  re- 
solutions, touching  the  roll,  which  he  wished  to  offer.     The  mode- 
rator told  him  he  was  out  of  order,  as  the  next  business  was  the 
reading  of  the  roll  by  the  clerks.     Dr.  Patton  said  that  his  motion 
referred  to  the  completion  of  the  roll,  I  don't  profess  to  give  his 
words  exactly,  and  that  he  wished  it  put  without  debate.    The  mo- 
derator said  that  he  was  out  of  order.     He  appealed  to  the  house. 
The  moderator  told  him  that  the  appeal  was  out  of  order.   Dr.  Patton 
sat  down,  and  the  clerk  proceeded  with  and  finished  his  roll.     The 
moderator  stated,  that  those  whose  names  had  been  read  by  the 
clerks,  were  to  be  considered  as  members  of  the  Assembly,  and  that 
if  there  were  any  persons,  who  had  not  yet  presented  their  commis- 
sions to  the  clerks,  now  was  the  time  to  do  so.     Upon  that,  a  gen- 
tleman, who  I  was  informed  was  Dr.  Mason,  rose,  and  moved  that 
the  roll  should  now  be  completed,  by  the  addition  of  the  names  of 
certain  commissioners.     He  said  that  their  commissions  had  been 
presented  to  the  clerks,  and  rejected.     The  moderator  inquired  if 
they  were  from  bodies  in  connexion  with  the  Presbyterian  Church, 
at  the  close  of  the  Assembly  of  1837.     Dr.  Mason  said  that  they 
were  from  the  bounds  of  the  Synods  of  Geneva,  Genessee,  Utica, 
and  the  Western  Reserve.   The  moderator  declared  that  they  could 
not  be  received,  and  were  out  of  order.    Dr.  Mason  said,  that,  with 
respect  for  the  chair,  he  must  appeal.     The  moderator  told  him  the 
appeal  was  out  of  order.     Dr.  Mason  then  tendered  the  commis- 
sions, and,  I  think,  demanded  that  the  names  should  be  put  upon 
the  roll.     I  don't  know  whether  I  have  given  the  exact  language  of 
the  moderator's  replies;  only  the  substance  is  impressed  upon  my 
mind.     The  moderator,  at  this  time,  repeated  his  call  for  commis- 
sions; and  Mr.  Squier,  as  I  was  told  it  was,  rose  at  that  moment 
and  stated  that  he  had  a  commission  from  the  Presbytery  of  Geneva, 
•which  he  had  presented  to  the  clerks,  and  which  they  had  rejected 


208 

or  refused.  He  demanded  a  seat  on  that  floor,  and  that  his  name 
should  be  put  on  the  roll- 

Cross-examinatio7i.  Questioned  by  Mr.  Meredith.. — Were  many 
of  the  students  of  the  Princeton  Theological  Seminary  in  town  at 
that  time. 

Witness. — I  can't  say  positively,  but  as  it  was  a  period  of  vaca- 
tion at  the  Seminary,  I  think,  a  number  of  the  students,  as  well  as 
some  of  the  professors,  were  present  in  the  city  at  that  time.  They 
were  in  and  out  of  town  occasionally  and  frequently,  so  that  1  can- 
not tell  how  many  of  the  students  were  present,  nor  how  many 
were  in  Philadelphia  on  any  particular  day.  I  should  not  think 
that  a  majority  of  the  professors  were  here. 

Hon.  Walter  Lowrie  called  by  the  respondents.  Interrogated  by 
Mr.  Hubhell,  the  witness  said :  I  w^as  present  at  the  organization  of 
the  General  Assembly  of  1838.  The  position  I  occupied  was  a  seat 
nearly  against  the  south-west  door  of  the  church,  through  which  is 
the  passage  into  the  graveyard.  I  sat  in  one  of  the  pews  which 
are  placed  against  the  wall  of  the  house.  After  the  General  As- 
sembly was  opened  with  prayer,  the  moderator.  Dr.  Elliott,  an- 
nounced that  the  first  business  was  the  report  on  the  roll  by  the 
Committee  on  Commissions,  and  he  called  on  the  clerks  for  the 
report.  Dr.  Patton  rose  and  stated  that  he  wished  to  submit  a 
motion.  He  did  not  state  the  motion,  but  he  held  in  his  hand  a 
paper,  which  I  presumed  to  contain  the  motion.  Dr.  Elliott  told 
him  he  was  out  of  order,  as  the  first  business  was  the  report  on  the 
roll.  Dr.  Patton  stated  that  his  resolutions  had  relation  to  the  roll. 
The  moderator  decided  that  he  was  out  of  order  at  that  time.  Dr. 
Patton  said  that  he  must  respectfully  appeal  from  that  decision  to 
the  house.  The  moderator  decided  that  his  appeal  was  out  of  order. 
I  do  not  recollect  that  any  reason  was  given  why  the  appeal  was 
out  of  order.  Dr.  Patton  sat  down.  The  moderator  directed  the 
clerk  to  proceed  with  the  roll,  and  Mr.  Krebs  read  for  a  consi- 
derable time.  When  he  ceased  reading,  the  moderator  announced 
that  if  there  were  any  commissioners  present  who  had  not  handed 
their  commissions  to  the  clerks,  it  then  was  the  proper  time  to  pre- 
sent them.  Dr.  Mason,  as  I  afterward  understood  it  was,  rose  at 
about  that  time  and  presented  the  commissions,  as  he  stated,  of 
a  number  of  commissioners  from  certain  presbyteries.  Perhaps  he 
named  them  as  being  presbyteries  of  the  four  Synods  of  Utica, 
Geneva,  Genessee,  and  the  Western  Reserve.  He  tendered  these 
commissions  to  the  moderator,  stating  that  they  had  been  presented 
to  the  clerks,  but  not  received.  The  moderator  informed  him  that  he 
was  not  at  that  time,  or  not  now,  in  order ;  which  his  ipsissima 
verba  were,  I  can't  tell,  but  one  or  the  other.  Dr.  Mason  said  that 
he  must,  respectfully,  take  an  appeal  from  this  decision.  The  mo- 
derator pronounced  the  appeal  out  of  order,  because  the  business 
immediately  before  the  house  was,  to  receive  those  commissions 
that  had  not  yet  been  presented,  if  any  such  there  were.  After 
that,  or  before,  a  gentleman  rose,  who,  I  was  told,  was  the  Rev. 
Mr.  Squier,  saying,  that  he  had  presented  his  commission  to  the 
clerks,  and  that  they  had  refused  it.     I  am  not  certain  whether  he 


209 

rose  before  or  after  Dr.  Mason.  He  tendered  the  commission,  and 
claimed  a  seat  as  a  member  of  that  house,  from  the  Presbytery  of 
Genessee.  The  moderator  asked  him  if  that  presbytery  belonged 
to  the  Synod  of  Genessee.  He  said  that  it  did.  The  moderator 
replied,  "  Sir,  we  do  not  know  you."  It  was  the  Synod  of  Geneva, 
not  Genessee.  I  confound  the  two  frequently,  because  I  do  not 
know  their  locality,  except  from  indistinct  recollection  of  the  geo- 
graphy of  that  part  of  the  country.  1  think  it  was  immediately 
after  this  that  Mr.  Cleaveland  rose.  At  the  moment  that  he  rose, 
I  got  up  and  stood  on  the  seat.  As  it  was  a  back  seat,  I  could  do 
this  without  the  appearance  of  disorder.  I  had  a  full  view  of  Mr. 
Cleaveland.  He  had  a  paper  in  his  hand,  and,  apparently,  com- 
menced by  reading.  I  heard  but  about  three  or  four  lines  of  the 
paper.  The  first,  I  did  not  hear;  but  T  distinguished  these  words: 
"We  have  been  advised  by  counsel,  learned  in  the  law,  that,  to 
secure  a  constitutional  organization,  and  certain  legal  rights,  it  is 
necessary  to  organize  at  this  time  and  place ;  which  we  will  pro- 
ceed to  do  in  the  shortest  time  possible."  Before  he  had  proceeded 
this  length,  there  were  calls  to  order,  from  the  moderator  and  from 
others.  After  these  words,  I  heard  nothing  more,  distinctly,  partly 
on  account  of  the  noise,  partly  from  his  hurried  enunciation,  as  he 
was  in  a  great  hurry  at  first,  and  the  calls  to  order  seemed  to  hasten 
him,  and  partly  by  reason  of  individuals  around  him  rising.  After 
he  had  ceased  reading,  he  moved  that  Dr.  Beman  should  take  the 
chair,  and  immediately  propounded  the  affirmative  of  the  question. 
He  was  answered  by  the  persons  in  his  neighbourhood  and  behind, 
with  a  very  emphatic  "  Aye."  He  said,  "  I  move  that  Dr.  Beman 
take  the  chair."  The  question  was  then  propounded :  "  Those  in 
the  affirmative  will  say,  aye."  I  did  not  hear  the  question  re- 
versed ;  and  1  would  say,  and  say  distinctly,  that  the  reverse  was 
not  put.  It  might  have  been  put,  in  a  lower  tone  of  voice,  and  I 
not  have  heard  it  from  my  position.  But  the  proceedings  which 
immediately  followed  did  not  leave  time  for  it  to  be  put,  even  in  a 
whisper.  I  would  not  thus  swear  to  a  negative,  but  that  the  want 
of  time  is  sufficient  proof  I  have  been  accustomed  to  deliberative 
assemblies.  For  seven  years  I  was  in  the  Senate  of  this  state,  for 
six  years  in  the  Senate  of  the  United  States,  and  eleven  years  I 
was  secretary  of  that  body.  The  immediate  proceeding  to  which 
I  refer  was,  the  motion  that  Dr.  Mason,  and  another  person,  whose 
name  I  did  not  hear,  should  be  clerks.  By  that  time,  the  noise  in 
the  neighbourhood  of  Mr.  Cleaveland,  and  the  rising  around  him 
excluding  him  from  view,' I  did  not  hear  the  question  put.  I  heard 
nothing  but  a  response,  like  the  first.  It  was  a  very  earnest  and 
hurried  response.  I  thought  there  were  two  or  three  voices  from 
the  gallery.  I  heard  nothing  of  this  on  the  first  question.  I  did 
not  hear,  distinctly,  any  question  after  that.  Others  were  put,  but 
what  they  were,  or  who  put  them,  I  did  not  hear.  I  thought  that 
the  person  had  moved  nearer  the  door  who  put  them,  but  persons 
rose  between,  and  shut  them  out  from  my  view.  I  heard  no  nega- 
tive responses.  All  the  votes  I  did  hear  were  around  Mr.  Cleave- 
land.    I  don't  know  what  testimony  has  been  before  given;  I  have 

18* 


210 

just  come  into  the  court-room  to-day.  During  the  time  these  ques- 
tions were  passing,  a  member  rose,  and  asked  Dr.  Elliott  if  nothing 
could  be  done  to  restore  order.  The  moderator  said  that  he  had 
called  to  order,  and  made  what  efforts  he  could,  that  he  supposed 
the  scene  would  soon  be  at  an  end,  and  the  house  restored  to  quiet. 
This  member  was  the  Rev.  Robert  J.  Breckinridge.  I  could  not 
measure  the  time  that  elapsed  from  Mr.  Cleaveland's  rising  till  the 
adjournment,  except  by  ideas.  It  was  such  a  hurried  scene,  that, 
without  looking  at  a  watch,  I  could  not  give  the  time  a  name.  The 
whole  transaction  passed  in  extraordinary  haste.  I  did  not  hear  of 
Dr.  Fisher's  appointment  until  the  next  day.  When  I  went  home, 
I  told  the  family  where  I  staid,  that  Dr.  Beman  had  been  chosen 
moderator.  They  said,  the  next  day,  that  it  was  Dr.  Fisher.  I  told 
them,  then,  any  man  might  be  mistaken,  for  I  was  looking  on,  and 
had  seen  nothing  like  it.  I  suppose  I  would  be  set  down  as  an 
Old  School  man.  I  was  not  a  member  of  that  Assembly,  but  the 
members  were  all  around  me.  I  sat  there  by  courtesy.  I  had 
business  with  all  the  members  of  the  Assembly,  and  took  any  seat  I 
found  vacant. 

Cross-examined. — Interrogated  by  Mr.  Wood. — I  was  not  a  mem- 
ber of  the  Assembly  of  1838;  but  I  was  the  year  before.  I  hold 
the  office  of  corresponding  secretary  of  the  Board  of  Foreign  Mis- 
sions of  the  Presbyterian  Church. 

Re-examined  by  Mr.  Ingersoll. — I  was  elected  by  the  Board  to 
that  place,  in  the  fall  of  1837,  the  time  wlien  the  Board  commenced 
its  existence. 

Interrogated  by  Mr.  Preston. — I  was  elected,  before  I  resigned 
my  place  in  the  Senate,  corresponding  secretary  of  the  Western 
Foreign  Missionary  Society,  .which  was  transferred,  in  1837,  to  the 
General  Assembly. 

Thursday  morning,  March  14tJt. 

Dr.  William  Phillips,  recalled  by  the  respondents,  testified :  I  was 
moderator  of  the  General  Assembly  in  1835,  which  was  since  Dr. 
Beman  was  moderator.  I  believe  Dr.  Witherspoon  was  present  at 
the  organization  of  the  General  Assembly  in  1838.  He  had  been 
moderator  since  Dr.  Beman  was,  viz.  in  1836.  Dr.  Beman  was 
moderator  in  1831,  I  think. 

Respondents  called  Mr.  Jerome  Twichell. 

Interrogated  by  Mr.  Hubbell,  the  witness  said  :  I  am  a  student  of 
the  Princeton  Theological  Seminary.  I  went  there  from  Miami 
University,  Oxford,  Ohio.  I  was  from  Cincinnati,  in  Ohio,  origin- 
ally; am' a  member  of  the  Second  Presbyterian  Church  there, 
under  Dr.  Beecher.  I  attended  the  organization  of  the  General 
Assembly  in  1838.  When  I  came  into  the  building,  I  took  a  seat 
on  the  right  side  of  the  church,  near  the  door  which  leads  into  the 
grave-yard.  I  staid  there  a  short  time,  and  then  went  into  the  gal- 
lery. There  were  several  vacant  seats  around  me  where  I  first 
sat.  There  were  also  several  vacant  seats  on  the  right  of  the  pul- 
pit. It  was  nearly  eleven  o'clock.  Dr.  Elliott  was  then  in  the  pul- 
pit.  It  was  before  the  sermon  commenced.   I  think  I  first  took  a  seat 


211 

on  the  right  side  of  the  aisle,  but  shortly  afterwards  I  moved  back, 
as  several  ladies  were  standing.  I  afterwards  saw  a  gentleman 
standing,  gave  him  my  seat,  and  went  into  the  gallery,  near  the 
pulpit.  Mr.  Samuel  VVilson  was  with  me.  I  saw  the  moderator, 
Dr.  Elliott,  come  out  of  the  pulpit,  and  taking  his  station  in  front, 
open  the  General  Assembly  with  prayer.  He  then  said  that  the 
next  business  was  to  read  the  roll.  Shortly  after  this,  Dr.  Patton 
rose  to  offer  certain  resolutions  which  were  in  his  hand.  The  mo- 
derator said,  "  You  are  out  of  order  at  this  time,  sir,  inasmuch  as 
the  first  business  is  the  report  of  the  clerks  on  the  roll."  Dr.  Patton 
then  said  that  his  resolutions  related  to  the  roll,  and  he  was  wil- 
ling to  have  them  passed  upon  without  remark.  The  moderator 
decided  that  he  was  out  of  order.  Dr.  Patton  appealed  from  the 
decision.  The  moderator  decided  that  his  appeal  was  out  of  order, 
as  the  house  was  not  yet  organized.  Dr.  Patton  then  sat  down. 
The  moderator  then  directed  the  clerk  to  proceed  with  the  reading 
of  the  report  on  the  roll.  Mr.  Krebs  read  the  roll  accordingly. 
Immediately  after  this,  an  individual,  whose  name  I  afterwards 
learned  was  Dr.  Erskine  Mason,  rose,  with  a  bundle  of  papers. 
Previous  to  this,  however,  the  moderator  announced,  that  if  there 
were  any  commissioners  present  who  had  not  presented  their  com- 
missions to  the  clerks,  now  was  the  proper  time  to  present  them. 
Dr.  Mason  said  he  held  in  his  hand  certain  commissions  which  had 
been  presented  to  the  clerks  and  refused.  He  then  moved  that  the 
roll  be  completed  by  the  addition  of  the  names  on  these  commis- 
sions. The  moderator  asked  if  they  were  from  presbyteries  in 
connexion  with  the  General  Assembly  at  the  close  of  the  meeting  of 
1837.  Dr.  Mason  replied,  that  they  were  from  presbyteries  belong- 
ing to  the  Synods  of  Utica,  Geneva,  Genessee,  and  the  Western 
Reserve.  The  moderator  said,  "  ive  can't  receive  them  at  this  time.''' 
After  Dr.  Mason  had  taken  his  seat,  a  gentleman  rose,  whose  name 
I  have  since  learned,  and  stated  that  his  commission  had  been  re- 
fused by  the  clerks,  and  that  he  now  presented  it,  and  demanded  his 
seat  in  the  General  Assembly.  The  moderator  asked  him  from 
what  presbytery  he  came.  He  replied,  from  the  Presbytery  of 
Geneva.  The  moderator  asked  if  the  Presbytery  of  Geneva  be- 
longed to  the  Synod  of  Geneva.  The  gentleman  replied,  that  the 
Presbytery  of  Geneva  was  within  the  bounds  of  the  Synod  of  Ge- 
neva. The  moderator  then  said,  "it-e  do  not  know  you,  sir.'^  The 
gentleman  then  took  his  seat.  I  afterwards  learned  that  the  gen- 
tleman's name  was  Mr.  Squier. 

I  believe  I  have  omitted  one  declaration  of  the  moderator  to  Dr. 
Patton.  He  said  there  could  be  no  appeal,  because  there  was  no 
house  to  appeal  to.  Next  an  individual  rose,  whose  name  I  after- 
wards learned  was  Mr.  Cleaveland,  holding  a  paper  in  his  hand, 
from  which  he  appeared  to  read.  The  first  part  of  what  he  read 
or  spake,  I  heard  distinctly.  The  latter  part  I  did  not.  It  was  to 
this  amount:  Whereas,  the  rights  of  certain  commissioners  have 
been  violated  in  their  being  refused  their  seats  as  members  of  the 
General  Assembly,  it  therefore  becomes  necessary  to  organize  the 
General  Assembly  at  this  time  and  in  this  place.     I  distinctly  heard 


212 

something  like  the  word  "  discourteous."     There  was  considerable 
noise  and  confusion  at  the  time.     The  next  thing  I  distinctly  heard, 

was  something  like  B .     I  supposed,  at  the  time,  the  word  was 

Beecher.  I  thought  that  he  said  Dr.  Beecher,  who  was  sitting  be- 
side Mr.  Cleaveland;  but  I  could  not  be  certain,  as  all  I  heard  was 
"  Dr.  jB."  Soon  after  this,  there  was  a  very  loud  vote  in  the  affirma- 
tive of  some  question  which  I  did  not  hear.  The  next  thing  that  I 
saw,  for  I  could  not  hear  any  thing  except  the  cries  of  "  order,  or- 
der," and  some  gentleman  saying  "I  hope  we  shall  have  order," 
the  moderator  distinctly  responded  that  the  confusion  would  soon 
be  over,  that  he  had  tried  to  preserve  order,  and  that  he  hoped  the 
members  would  keep  their  seats.  The  next  thing  which  I  saw,  was 
several  individuals  going  into  the  aisle  near  the  pews  occupied  by 
Dr.  Beman,  Dr.  Mason,  and  Mr.  Cleaveland.  In  several  places  in 
the  house  there  were  individuals  standing  up,  and  considerable 
rustling  of  dresses,  and  noise  occasioned  by  persons  rising  in  the 
gallery.  Those  whom  I  have  mentioned,  went  into  the  aisle  about 
this  time,  and  I  heard  distinctly  after  they  had  gone  some  distance 
into  the  aisle,  affirmative  responses  to  something  which  I  did  not 
hear.  In  a  short  time,  a  great  part  of  the  persons  in  the  gallery, 
and  on  the  floor  below,  including  ladies  and  others,  left  the  house. 
I  could  not  distinguish  members  iVom  others.  About  this  time  there 
was  a  general  clapping  and  some  hissing,  which  I  supposed  to  pro- 
ceed from  the  audience,  rather  than  the  actors  in  the  scene.  After 
they  had  generally  left  the  house,  Mr.  Edward  Beecher  came  back 
to  the  door,  and  proclaimed  in  a  very  audible  voice,  that  the  Gene- 
ral Assembly  of  the  Presbyterian  Church  had  adjourned  to  meet 
forthwith  at  the  First  Presbyterian  Church.  The  same  was  pro- 
claimed at  the  side  door  of  the  house,  by  some  one  whom  I  did  not 
distinctly  see  nor  recognize,  but  still  I  heard  him  distinctly.  Another 
individual  then  repeated  the  proclamation  at  the  other  doors  of  the 
house,  that  the  General  Assembly  had  adjourned.  The  Jirst  vote 
on  Mr.  Cleaveland's  motion,  I  saw  him  and  heard  the  affirmative 
distinctly.  I  heard  no  negative  votes.  I  did  not  hear  a  reversal 
of  the  question.  I  cannot  affirm  that  I  heard  any  votes  from  the 
gallery.  But  the  votes  arose  in  a  body,  and  I  can't  say  from  what 
part  of  the  house  they  came.  I  cannot  say  how  long  it  occupied 
them  to  go  through  with  these  transactions.  But  it  was  a  very 
short  time.  It  was  a  time  of  deep  excitement.  I  did  not  know  of 
Dr.  Fisher's  being  elected  moderator  at  that  time.  I  was  informed 
afterwards  that  he  had  been. 

Rev.  Varnum  A.  Noyes  was  called  by  the  respondents. 

Interrogated  by  Mr.  Hubbell,  the  witness  said:  I  am  a  clergyman 
of  the  Presbyterian  church.  I  was  not  a  delegate  to  the  General 
Assembly  of  1838;  I  reside  in  the  Western  Reserve  in  the  northern 
part  of  the  State  of  Ohio.  I  belong  to  the  Presbytery  of  Wooster. 
I  did  belong  to  the  Presbytery  of  Medina  in  1837.  I  previously 
belonged  to  the  Presbytery  of  Cleveland.  The  Presbytery  of  Me- 
dina is  within  the  bounds  of  the  Synod  of  the  Western  Reserve.  lam 
somewhat  acquainted  with  other  presbyteries  in  the  Western  Reserve. 
I  have  some  acquaintance  with  the  Presbytery  of  Portage  belong- 
ing to  the  Synod  of  the  Western  Reserve,  also  that  of  Cleveland. 


213 

Mr.  Huhhell  asked,  as  to  the  Presbytery  of  Medina,  how  is  it  con- 
stituted as  regards  CongregationaHsts  and  Presbyterians'? 

Mr.  Meredith  asked  for  what  purpose  the  counsel  had  introduced 
the  inquiry  ? 

Mr.  Hubhell. — Our  purpose  is  to  prove  that  this  presbytery  is 
principally  composed  of  Congregational  churches,  and  to  follow  up 
the  inquiry  by  other  proof  of  other  witnesses  that  other  presbyteries 
are  composed  of  a  majority  of  Congregational  churches. 

Mr.  Meredith. — I  object,  because  the  inquiry  is  totally  irrelevant 
to  the  issue  of  this  cause.  Suppose  it  were  proved  that  in  the  whole 
of  the  excinded  presbyteries  there  is  a  majority  of  ministers  who  are 
pastors  of  Congregational  churches,  and  that  a  single  presbytery  is 
composed  entirely  of  ministers,  who  are  pastors  of  Congregational 
churches,  what  effect  would  it  have,  seeing  the  ministers  and  not 
the  churches  compose  the  presbyteries? 

An  extended  colloquy  ensued. 

The  counsel  for  the  respondents  urged  the  admission  of  the  tes- 
timony for  the  sake  of  showing  such  an  admixture  of  Congrega- 
tionalism in  the  churches  connected  with  the  excinded  synods,  as  to 
justify  the  acts  of  excision  and  the  exclusion  of  the  commissioners 
from  the  presbyteries  within  those  synods.  The  relators,  on  the 
other  hand,  contended  that  if  the  admixture  were  proved,  it  could 
not  affect  the  integrity  of  the  presbyteries,  as  they  existed  indepen- 
dent of  the  churches  and  were  erected  in  the  constitutional  manner, 
by  the  proper  judicatories;  and  that  if  it  were  otherwise,  it  was  not 
competent  to  the  party  of  the  respondents,  now,  to  adduce  evidence 
of  a  vice  which  might  have  been  cause  of  a  judicial  trial  in  the 
church  court,  thereby  to  justify  the  excision  of  these  bodies  without 
a  trial.  It  was  too  late,  they  contended,  to  set  up  such  a  defence 
even  in  the  church  courts,  much  less  could  it  be  brought  into  this 
case  before  the  civil  tribunal. 

Judge  Rogers  ruled  that  the  evidence  was  inadmissible,  and  said, 
the  proceedings  of  the  Assembly  of  1837  were  admitted  in  explana- 
tion of  those  of  1838.  I  then  did  not,  and  still  do  not  understand, 
how  we  could  do  without  them.  I  then  thought  that  the  proceed- 
ings of  1837  were  necessary  to  the  defendants'  case,  and  I  still 
think  so.  But  with  the  reasons  of  these  proceedings  we  have 
nothing  to  do.  We  are  to  determine  only  what  was  done ;  the 
reasons  of  those  who  did  it  are  immaterial.  If  the  acts  complained 
of  were  properly  and  constitutionally  within  the  jurisdiction  of  the 
Assembly,  their  decision  must  be  final,  even  though  they  decided 
wrongfully.  The  civil  courts  have  enough  to  do  without  interfer- 
ing with  such  questions. 

The  respondents  called  the  Rev.  Francis  M^Farlane.  Interrogated 
by  Mr.  Hubhell,  the  witness  said :  The  General  Assembly  has  three 
Boards:  the  Board  of  Education,  the  Board  of  Missions,  as  it  is 
called,  for  domestic  missions,  and  the  Board  of  Foreign  Missions. 
The  Assembly  has  no  connexion  with  the  Home  Missionary  Society, 
though  some  years  ago  they  recommended  the  Home  Missionary 
Society  to  the  patronage  of  their  churches.  The  Assembly  has  no 
connexion  with  what  is  styled,  I  think,  the  Central  Education  So- 


214 

ciety.  I  am  Corresponding  Secretary  to  the  Board  of  Education, 
attached  to  the  General  Assembly.  I  have  here  some  of  the  books 
of  that  board.  Our  register  contains  the  names  of  the  young  men 
assisted  by  the  board,  and  our  leger,  the  sums  paid  to  all  these 
young  men. 

Judge  Rogers  inquired,  what  has  this  to  do  with  the  case  ? 
Mr.  Huhbell  informed  the  Court  that  he  designed  to  rebut  the 
evidence  which  Mr.  Randall  had  exhibited  the  other  day  from  the 
statistical  tables,  &c. ;  to  show  that  the  contributions  then  exhibited 
were  made  in  obedience  to  a  resolution  of  the  Assembly,  requiring 
the  presbyteries  to  report  their  contributions,  not  only  to  the  boards 
of  the  Church,  but  to  all  charitable  societies ;  and  that,  in  those 
years,  when,  from  the  extracts  read,  the  presbyteries  referred  to, 
would  appear  to  have  contributed  largely,  but  a  few  hundred 
dollars  of  these  contributions  were  appropriated  to  the  Church 
funds. 

Judge  Rogers. — The  extracts  read  by  Mr.  Randall  were  offered 
to  prove,  merely  that  these  presbyteries  were  part  of  the  Church, 
and  as  such,  recognised  by  the  General  Assembly  in  the  act  of 
receiving  funds  from  them;  and  it  is  entirely  immaterial,  whether 
only  one  dollar,  or  ten  thousand  dollars  were  contributed. 

The  respondents  called  Mr.   Thomas  Evans.    Interrogated  by 
Mr.  Hubbell,  the  witness  said :  I  attended  the  General  Assembly  in 
Ranstead  court,  and  was  present  at  its  organization  in  May,  1838. 
The  position  which  I  occupied  was  one  of  the  side  pews  in  the  south- 
west gallery.     I  never  was  in  the  house  but  once  before.     I  saw 
Mr.  Cleaveland  rise.     He  held  in  his  hand  a  paper.     I  was  told 
that  it  was  Mr.  Cleaveland,  but  I  did  not  know  him.    I  have  resided 
for  nearly  twelve  years  in  one  of  the  southern  states,  and  am  there- 
fore a  stranger  in  this  city.     His  face  was  towards  the  moderator 
when  he  rose,  but  he  turned  round  as  he  read  or  spoke.     I  could 
not  hear  distinctly  what  he  said,  nor  whether  he  read  from  the 
paper,  or  spoke  independently  of  it,  though  I  thought  he  read  from 
it.     I  heard  his  voice,  but  could  not  understand  what  he  said.   The 
moderator  called  him  to  order,  by  rapping  with  his  hammer,  and 
otherv^'ise.    A  number  of  other  persons  also  cried  "Order!  order!" 
I  was  in  the  first  seat  in  the  gallery,  near  to  the  pulpit.    Mr.  Cleave- 
land was  located  on  the  floor,  almost  opposite  to  me.     I  am  con- 
fident I  did  not  hear  what  he  read,  that  is,  I  did  not  hear  it  so  as  to 
understand  any  part  thereof.     There  was  a  confusion  at  the  time, 
which  prevented  me  from  understanding  him.     I  heard  his  voice 
merely.     After  his  reading  what  he  did  from  the  paper,  he  pro- 
posed that  Dr.  Beman  act  as  temporary  moderator.   He  stated  that 
he  wished  those  in  favour  to  signify  it  by  saying  aye,  when  there 
was  a  loud  vote  in  the  afiirmative.     I  did  not  hear  any  noes.     Im- 
mediately Dr.  Beman  stepped  into  the  aisle.     The  question  was  not 
reversed.     I  took  particular  notice  of  this  at  the  time.    From  what 
I  had  heard  out  of  doors,  I  expected  to  hear  it  voted  down.    After 
the  General  Assembly  had  adjourned,  I  recollect  stating  to  a  gen- 
tleman, that  the  question  was  not  reversed.     I  am  not  only  con- 
fident of  this,  I  may  say  positively  that  I  know  it.     Dr.  Beman,  as 


215 

I  said,  stepped  into  the  aisle.  Mr.  Cleaveland,  I  think,  had  occu- 
pied ihe  same  pew  with  Dr.  Beman,  Dr.  Beman  sitting  by  the  door. 
After  Dr.  Beman  took  his  station  in  the  aisle,  a  motion  was  made 
by  some  one,  I  think  by  Mr.  Cleaveland,  that  Dr.  Mason  and  ano- 
ther gentleman  act  as  clerks,  and  the  question  was  carried  by  a 
very  loud  "  Aye."  Dr.  Fisher  was  then  named  by  some  person 
as  moderator  of  the  Assembly  of  1838,  and  the  nomination  was 
seconded.  The  motion  was  then  put  and  carried.  There  was  a 
very  loud  affirmative  voice.  There  was  then  a  motion  made,  I 
think,  that  those  in  favour  of  these  proceedings  should  retire  or 
adjourn,  to  the  rear  of  the  house  ;  I  am  not  certain  which.  Accord- 
ingly, a  great  many  persons  went  towards  the  end  of  the  house, 
and  formed  in  the  middle  aisle,  I  should  think  about  halfway  from 
the  pulpit.  Some  were  at  this  time  standing  on  the  seats  in  or 
near  the  middle  aisle  of  the  church.  I  am  unable  to  state  accu- 
rately what  was  said  after  that.  I  heard  nothing  distinctly,  except 
that  the  General  Assembly  had  adjourned  to  the  First  Presbyterian 
Church ;  to  Mr.  Barnes's  church,  was  reiterated.  There  was  con- 
siderable confusion  at  the  time,  which  prevented  me  from  hearing. 
I  saw,  in  the  north-east  corner  of  the  house,  several  persons  clap- 
ping their  hands,  as  though  in  applause  of  what  was  going  on ;  the 
names  of  all  of  them  I  did  not  know,  though  I  think  I  could  know 
some  of  them.  I  should  say  that  every  one  whom  I  knew  appeared 
to  belong  to  the  respectable  portion  of  the  community.  I  don't 
know  to  which  party  they  belong.  I  heard  a  loud  "Aye"  in  the 
case  of  Dr.  Beman;  that  is,  on  the  question  of  appointing  him  tem- 
porary moderator.  Several  persons  around  me,  and  one  young 
man  in  the  gallery  close  by  me,  on  my  left  hand,  voted  "  No."  This 
young  gentleman  was  the  one  from  whom  I  learned  the  names  of 
the  different  parties.  There  were  ladies  in  the  gallery:  I  cannot 
say  whether  they  were  silent.  Those  around  me  appeared  so. 
While  the  body  was  retiring,  there  was  great  applause,  I  recollect 
distinctly.  I  keep  a  hat  store  in  this  city,  and  attend  the  Tenth 
Presbyterian  Church,  Mr.  Boardman's.  1  am  a  communicant  of 
that  church.  I  think  I  had  then  handed  in  my  certificate,  from  the 
First  Presbyterian  Church  of  Augusta,  Georgia,  of  which  I  had 
before  that  time  been  a  member. 

Cross-examined  by  Mr.  Randall. — I  think  my  papers  were  handed 
in  before,  and  that  I  was  admitted  afterwards.  Mr.  Boardman's 
church  belongs  to  the  Old  School  party,  and  to  the  Second  Presby- 
tery of  Philadelphia.  I  profess  to  be  a  Presbyterian.  I  think  I 
have  sympathized  with  the  Old  School,  believing  myself  nearest 
the  truth  in  sympathizing  with  them.  I  have  been  influenced  by 
nobody  in  these  sympathies. 

Rev.  Henry  A.  Buardman,  called  by  the  relators.  Interrogated 
by  JW.  Huhbell,  the  witness  said :  I  am  pastor  of  the  Tenth  Presby- 
terian Church  in  this  city.  I  was  not  a  delegate,  but  attended  at 
the  opening  of  the  General  Assembly  of  1838.  The  position  which 
I  occupied  was  a  pew  in  the  south-west  part  of  the  church,  on  the 
right  hand  of  the  moderator's  position ;  that  is,  to  one  facing  him. 
I  don't  remember  whether  I  was  in  the  seat  which  binds  against 


216 

the  wall  of  the  house  or  in  the  next  one  to  it.  These  seats  are 
raised  a  single  step  above  the  floor  of  the  church.  Mr.  Cleaveland 
rose,  facing  the  moderator,  with  a  paper  in  his  hand,  and  com- 
menced reading,  in  the  manner  which  has  been  pointed  out  by 
several  witnesses.  He  made  some  remark  which  1  did  not  under- 
stand. I  heard  nothing,  which  I  can  now  remember,  except  the 
words,  "  counsel  learned  in  the  lawJ"  Whether  those  words  were 
in  the  paper  or  prefatory  remarks,  I  do  not  know.  His  eyes  were 
closely  fixed  on  the  paper.  Mr.  Cleaveland's  countenance  was 
flushed,  and  he  appeared  much  agitated.  His  frame  and  voice 
Trembled.  He  turned  gradually  as  he  read,  till  he  faced  the  west 
side  of  the  house.  The  moderator  called  him  to  order  and  rapped 
with  his  hammer  repeatedly,  and  there  were  cries  of  order  from  a 
number  of  the  members  around  me,  who  used  various  expressions  ; 
some  cried  ^^  Shame,  shamed  and  I  heard  one  or  two  gentlemen 
say,  "  Let  him  go  on."  At  this  time  some  rose  on  their  feet,  and 
there  were  some  standing  on  the  seats,  which  prevented  me  from 
seeing  Mr.  Cleaveland.  I  however  heard  him  make  a  motion 
something  like  this,  that  Dr.  Beman  be  appointed  moderator.  I  am 
not  positive  that  those  were  his  words,  but  what  he  said  was  some- 
thing equivalent  to  what  I  have  mentioned.  He  called  for  the  yeas, 
saying  that  those  in  favour  would  say,  aye.  There  was  then  a 
very  loud  "  Aye."  He  did  not  reverse  the  question,  on  his  nomi- 
nation of  Dr.  Beman.  I  distinctly  heard  the  next  question,  and  he 
did  not  reverse  it  either.  I  speak  with  entire  confidence,  because 
I  spoke  of  it  frequently  afterwards.  I  supposed  that  the  omission  to 
reverse  the  question  arose  from  embarrassment.  Shortly  after  this 
there  was  a  movement  of  several  persons  toward  the  north  door  in 
the  middle  aisle.  After  this  they  were  completely  obscured  from 
my  view  by  the  intervention  of  persons  who  were  standing  on  the 
floor,  on  the  seats,  and  even  on  the  backs  of  the  pews.  I  heard  not 
what  passed,  except  a  hum  or  buzz,  and  then  a  loud  and  tumultu- 
ous "  Aye,"  from  a  number  of  voices,  and  one  voice  sounding  high 
over  all  the  rest.  I  did  not  know  at  the  time  that  Dr.  Fisher  was 
appointed  moderator,  and  denied  it  when  I  first  heard  it  afterwards. 
Soon  after  the  responses  of  "Aye,"  the  actors  in  the  scene  rushed 
toward  the  north  door  of  the  church.  I  supposed  from  what  I  saw- 
that  they  were  leaving  the  house.  At  length  there  was  another 
movement  toward  that  and  the  east  door,  and  a  person  appeared  at 
the  door,  and  in  a  very  loud,  shrill  voice,  proclaimed  that  the  Gene- 
ral Assembly  of  the  Presbyterian  Church  had  adjourned,  to  convene 
immediately  in  the  First  Presbyterian  Church,  which  excited  a 
smile.  This  was  repeated  at  the  east  door  of  the  house.  Whether 
the  person  who  made  this  proclamation  went  round  and  put  his 
head  in  at  the  east  door,  I  don't  know.  The  house  was  very  much 
crowded  until  part  of  the  spectators  went  away.  As  far  as  I  can 
judge,  the  greater  part  staid  with  us  after  they  left  the  house. 
According  to  the  best  of  my  recollection,  I  did  hear  a  few  "Noes" 
on  the  first  question,  but  not  in  response  to  Mr.  Cleaveland.  They 
appeared  to  be  simultaneous  or  intermingled  with  the  "Ayes,"  or 
immediately,  in  quick  succession,  afterwards.     The  "  Noes"  did  not 


217 

come  from  my  part  of  the  house.  They  appeared  to  come  from 
the  same  vicinity  as  the  "Ayes."  Perhaps  some  of  them  might 
have  come  from  the  gallery.  None  of  the  Old  School  party,  so  far 
as  I  know,  voted  on  either  of  the  questions. 

Mr.  Hiig/i  Auchindoss,  called  by  the  respondents,  interrogated  by 
Mr.  Hubbell,  said:  I  attended  the  organization  of  the  General  As- 
sembly of  1838;  was  a  commissioner  from  the  First  Presbytery  of 
'New  York;  was  located  in  the  south-west  corner  of  the  church; 
am  not  a  clergyman :  am  a  ruling  elder.  Dr.  Mason  had  scarcely 
sat  down  before  Mr.  Cleaveland  rose  up  and  commenced  reading  a 
paper.  It  appeared  to  me  that  he  did  not  address  the  moderator. 
1  could  not  distinctly  hear  what  he  read  from  that  paper,  but  I 

heard  him  say,  "  I  move  that  Dr.  B take  the  chair."    I  did  not 

distinctly  hear  whether  he  said  Dr.  Beman  or  Dr.  Beecher.  A 
number  of  persons  immediately  responded  "Aye,"  in  a  very  loud 
voice.  I  heard  no  negative  voices,  nor  did  I  hear  any  one  of  the 
questions  reversed,  and  knew  not  what  they  were :  I  only  inferred 
that,  for  I  did  not  hear.  On  the  second  question  I  am  positively 
certain  that  there  was  no  negative  vote.  Neither  of  the  questions 
was  reversed.  Of  this  I  am  positive.  I  distinctly  heard  voices  from 
the  gallery  saying  "Aye."  They  went  out  of  the  house  in  a  very 
disorderly  manner,  as  it  appeared  to  me.  These  proceedings  passed 
very  rapidly.  I  suppose  they  did  not  occupy  more  than  five  mi- 
nutes, if  as  much.  The  moderator's  answer  to  Dr.  Mason  was, 
"You  are  out  of  order  at  this  time."  Those  were  the  exact  words 
used  by  the  moderator.  I  am  positively  certain ;  I  cannot  be  mis- 
taken. I  did  not  hear  Dr.  Fisher's  name  mentioned,  and  did  not 
know  that  he  had  been  elected  moderator  until  next  morning.  I 
did  not  vote  on  any  of  the  questions. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said :  I  belong  to  the  Duane  street  Church  in  the  city  of  New  York. 
We  have  no  party  there.  The  question  was  never  agitated  in  our 
church.  We  range  under  no  banner  but  the  Presbyterian  banner, 
the  banner  of  the  cross.  We  are  certainly  an  Old  School  church. 
The  noise  and  confusion  and  tumult  at  the  time  prevented  me  from 
hearing  what  was  going  on,  when  Dr.  Fisher  was  appointed  mode- 
rator. 

Mr.  Meredith. — I  understand  you  to  say  that  you  are  Old  School 
men  1 

Witness. — We  are  of  the  Old  School,  as  the  New  School  party 
call  us. 

Mr.  Meredith. — Do  you  know  by  whom  those  terms  were  first 
used? 

Witness. — They  were  first  used  by  the  New  School  party,  in  the 
General  Assembly  of  1831. 

Counsel. — Are  you  quite  sure  that  they  were  first  used  by  the 
New  School  party? 

Witness. — I  will  refer  you  to  my  respectable  friends  on  the  other 
side.  Perhaps  they  can  give  you  the  information.  I  am  very  proud 
to  be  ranked  with  the  Old  School. 

Mr.  Meredith. — Do  you  know  who  first  used  that  term? 

19 


218 


Witness. — I  do  not  know,  but  believe  it  first  came  from  the  neigh- 
bourhood of  my  respected  friend  hei'e  (Dr.  Peters.)  The  term  has 
been  used  a  long  time. 

Respondents'  counsel  here  read  in  evidence,  from  the  Assembly's 
Digest,  page  118,  the  second  of  "three  articles"  selected  from  the 
Plan  of  Union  adopted  by  the  Synods  of  New  York  and  Philadel- 
phia in  1758,  from  the  minutes  of  the  United  Synod,  page  3,  as  fol- 
lows: 

11.  That  when  any  matter  is  determined  by  a  major  vote,  every  member  shall 
either  actively  concur  with,  or  passively  submit  to,  such  determination  ;  or,  if  his 
conscience  permit  him  to  do  neither,  he  shall  be  at  liberty  modestly  to  reason  and 
remonstrate,  and  peaceably  withdraw  from  our  communion,  without  attempting  to 
make  any  schism ;  provided,  always,  that  this  shall  be  understood  to  extend  only  to 
such  determinations,  as  the  body  shall  judge  indispensable  in  doctrine  or  Presby- 
terian Government. 

Mr.  William  Wilson,  called  by  respondents'  counsel,  interrogated 
by  Mr.  Huhhell,  said:  I  was  a  delegate  from  the  Presbytery  of 
New  Brunswick,  to  the  General  Assembly  of  1838.  I  attended  at 
the  opening  of  that  Assembly  in  May. 

(Witness  here  described,  as  several  others  did,  the  position  which 
he  occupied  in  the  house,  by  referring  to  a  plan  of  the  church  pre- 
sented by  counsel.) 

I  was  on  the  west  side  of  the  centre  aisle,  six  or  seven  pews  from 
the  front,  next  the  pulpit.  I  am  a  ruling  elder  of  the  Presbyterian 
Church.  Mr.  Cleaveland  was  close  by  where  I  sat.  He  had  some 
paper  in  his  hand,  which  he  attempted  to  read.  He  said  he  meant 
no  discourtesy,  but  that  "we  have  been  advised  by  learned  counsel 
that  this  is  the  place  in  which  we  must  organize."  I  did  not  know 
who  "we"  meant.  I  sat  by  the  door  of  the  pew,  next  the  aisle.  He 
was  called  to  order  by  the  moderator.  Several  voices  near  the 
moderator,  and  in  different  parts  of  the  house,  called  him  to  order, 
and  one  person  urged  him  to  proceed.  It  was  in  a  low,  but  seem- 
ingly earnest  tone,  urging  him  to  go  on.  In  the  course  of  his  re- 
marks, he  moved  that  Dr.  Beman  take  the  chair,  which  was  second- 
ed by  some  person,  who  I  did  not  know,  in  the  same  quarter.  When 
he  had  put  the  motion,  there  was  a  very  loud  "  Aye"  which  rung 
through  the  whole  church.  From  the  manner  of  the  sound  filling 
the  whole  house,  my  impression  was  that  some  of  the  voices  came 
from  the  galleries.  The  calls  to  order  were  repeated  and  continued. 
The  moderator  used  his  mallet,  and  used  some  words  which  I  did 
not  exactly  hear,  and  finally  sat  down.  Dr.  Beman,  who  sat  at  the 
door  of  the  pew  with  Mr.  Cleaveland,  then  came  out  of  the  pew  into 
the  aisle,  and  passing  down  the  aisle  a  little  space,  took  his  station 
there.  I  did  not  hear  the  question  on  his  motion  reversed.  I  am 
certain  I  was  so  near  him  that  I  should  have  heard  it,  if  it  had  been 
reversed.  It  teas  not  reversed.  There  was  then  a  move  further 
back  in  the  house.  Dr.  Beman  was  then  between  the  mass  which 
seemed  to  be  moving  back  and  the  moderator's  chair.  I  heard  the 
calls  to  order.  They  were  very  loudly  made.  That  is  the  chief 
ihat  I  can  tell,  as  I  kept  my  seat  for  the  whole  time.  I  heard  noise, 
confusion,  and  very  loud  "  ayes,"  but  no  "  noes."  I  did  not  vote. 
I  heard  afterwards  the  voices,  which  appeared  to  be  much  nearer 


219 

the  north  door  of  the  house.  A  great  number  had  then  gone  out  of 
the  house.  An  individual  proclaimed  that  the  General  Assembly 
of  the  Presbyterian  Church  would  meet  at  the  First  Presbyterian 
Church,  on  Washington  Square,  immediately  or  forthwith.  I  knew 
nothing  about  Dr.  Fisher's  being  elected  moderator,  except  that  I 
heard  it  by  common  fame.  The  whole  of  this  movement  occupied 
but  a  very  few  minutes,  perhaps  not  more  than  five.  Its  manner 
was  very  hasty,  and  the  proceedings  were  had  with  great  rapidity. 
A  gentleman  in  the  same  pew  with  Mr.  Cleaveland,  and  whom  I 
was  informed  was  Dr.  Wm.  Patton,  made  a  motion.  He  was  on 
the  side  of  the  aisle  just  opposite  to  where  I  sat.  1  recollect  that 
gentleman  arose,  after  the  moderator  had  opened  the  Assembly  with 
prayer,  and  stated  that  then  was  the  time  for  the  clerks  to  proceed 
with  the  roll.  He  offered  a  paper,  which  he  stated  to  be  in  con- 
nexion with  the  roll.  The  moderator  declared  it  to  be  out  of  order 
at  that  time.  He  appealed,  and  the  moderator,  for  the  same  reasons 
that  he  had  declared  the  first  motion  to  be  out  of  order,  declared  the 
appeal  to  be  out  of  order.  I  understood  him  so.  I  may  not  have 
given  the  exact  words.  Another  gentleman  presented  a  paper  of 
the  same  kind  after  the  roll  had  been  read,  which  the  moderator  de- 
clared to  be  out  of  order.  The  vote  taken  on  the  question  was  a 
shout  of  "  aye."  The  whole  was  conducted  in  a  peaceable  manner, 
that  is,  I  mean  actually  peaceable;  but  it  was  not  conducted  in  an 
orderly  manner.  When  these  two  gentlemen  arose,  I  mean  the 
first  two,  I  considered  them  orderly.  I  believe  that  I  have  stated 
all  that  I  know.  The  first  question  was  put  to  the  house.  I  did  not 
hear  any  others  put.  I  did  not  act  with  them.  It  was  necessary 
to  pay  very  close  attention,  in  order  to  understand  what  was  going 
on;  and  I  presume  that  much  of  the  time  there  were  some  present 
that  did  not  hear  the  transactions.  There  was  considerable  applause 
when  they  retired,  something  like  cheering.  I  could  observe  at  the 
same  time  numbers  in  the  gallery  moving  toward  the  place  where 
they  went. 

Here  the  defendants'  counsel  oflTered  in  evidence  and  read  from 
the  minutes  of  the  New  School  Assembly  of  1838,  p.  G63-7,  a  part 
of  the  pastoral  letter,  as  it  is  called,  and  the  court  decided  at  the  in- 
stance of  the  opposite  counsel  that  the  whole  was  to  be  considered 
in  evidence.     It  is  as  follows : 

Pastoral  Letter  to  the  Churches  under  the  care  of  the  General  Assembly. 

Beloved  in  the  Lord. — It  is  well  known  as  a  matter  of  history,  that  the  Presbyte- 
rian church  in  our  nation  commenced  in  the  union  of  pious  natives  and  foreigners 
of  Congregational  and  Presbyterian  origin.  These  differences,  in  her  early  and 
feeble  state,  occasioned  no  interruption  of  her  peace  and  efficiency.  But  as  her 
members  increased,  they  produced  contentions,  which  resulted  in  the  violent  ex- 
pulsion of  one  synod  by  another,  and  a  separation  of  seventeen  years. 

The  terms  of  reunion  were,  a  subscription  of  the  Confession  of  Faith,  "  as  con- 
taining the  system  of  doctrine  taught  in  the  Holy  Scriptures,"  notwithstanding  any 
such  "scruples  with  respect  to  any  article  or  articles  of  said  Confession,  as  the 
presbytery  or  synod  shall  judge  not  essential  or  necessary,  in  doctrine,  worship  or 
discipline;"  and  "the  synod  do  solemnly  agree  that  none  of  us  will  traduce  or  use 
any  opprobrious  terms  of  those  who  differ  from  us  in  those  extra  essential  and  not 
necessary  points  of  doctrine,  but  treat  them  with  the  same  friendship,  kindness  and 
brotherly  love,  as  if  they  had  not  differed  from  us  in  such  sentiments." 

By  this  "plan  of  union,"  the  peace  of  the  church  was  restored,  and  her  prospe 


220 

rit\'  augrnented,  tliough  from  some  circumstances  the  administration  of  her  pohcj 
was  continued  without  envy,  in  the  hands  of  the  immig-rant  Presbyterian  portion  of 
the  chui'ch. 

Wiien  the  tide  of  population  began  to  roll  westward,  and  the  territories  of  our 
church  were  fast  filling-  up  with  pious  emigrants  fiom  the  East,  a  proposal  was 
made  by  the  General  Assembly  of  our  chuixh  to  the  Association  of  Connecticut,  to 
permit  the  iniion  of  the  same  cliurch  of  Pi-esbyterians  and  Congregation alists  in  the 
new  settlements,  for  tiie  greater  facilitj'  of  supporting  and  extending  the  institu- 
tions of  religion.  This  union,  so  congenial  with  t'le  spirit  of  the  gospel,  exerted 
for  a  long  time  an  auspicious  influence,  in  the  extension  of  Presbyterian  churches 
from  tlie  Hudson  to  the  Mississippi. 

But  at  length,  in  the  mysterious  pi-ovidence  of  God,  it  came  to  pass  that  the  very 
causes  of  our  pi-osperity  became  tlie  occasions  of  disaster.  For,  in  the  rapid  mul- 
tiplication of  new  states  and  Presbyterian  churches,  it  soon  became  apparent  that 
native  American  Presbyterians  must  unavoidably  become  a  majority  of  the  church  ; 
and  though  the  slight  variations  of  docti'ine  and  policy  created  no  alarm  while  the 
helm  of  power  was  supposed  to  be  safe,  the  prospect  of  its  passing  to  other  hands 
created  a  strong  sensation. 

About  this  time  a  plan  of  union  was  formed  with  the  Associate  Reformed  church, 
and  a  considerable  accession  was  made  to  our  church  from  tliat  body  ;  and,  soon 
after,  the  system  of  ecclesiastical  organization  commenced  for  the  administration  of 
tlie  charities  of  tlie  church,  witii  increasing  unfriendliness  to  voluntary  associations, 
till  the  one  was  established  and  the  otiiers  w"ere  disclaimed  and  opposed. 

During  the  progress  of  these  movements,  the  slight  shades  of  doctrinal  differ- 
ence, always  known  and  permitted  to  exist  in  the  church,  before  and  since  the 
adopting  act,  and  recognized  in  every  form,  as  consistent  with  the  Confession  of 
Faith  and  the  unity  of  the  Spirit  in  the  bonds  of  peace,  became  the  occasions  of 
alarm,  and  whisperings,  and  accusations,  and  at  length  of  ecclesiastical  trials  for 
heresy  ;  while  doctrines  and  measures  unknown  to  the  confession  were  selected  as 
tests  of  orthodoxy. 

As  the  results  of  these  efforts  to  change  the  terms  of  subscription  and  union,  tlie 
General  Assembly  of  1837,  "convinced  that  a  separation  of  the  parties  was  the 
only  cure,"  and  "that  a  separation  by  personal  process  was  impossii:)le,  or,  if  pos- 
sible, tedious,  agitating  and  troublesome  in  the  highest  degree,"  proceeded  with- 
out ciiarges,  citation,  witnesses  or  a  judicial  trial,  to  separate  four  synods  and  one 
presbytery  from  the  Presijyterian  church.  In  these  circumstances,  apprised  by 
counsel  of  the  unconstitutionality  of  the  disfranchising  act,  and  advised  of  a  consti- 
tutional mode  of  organization,  we  did,  in  a  meeting  for  consultation  and  prayer,  on 
the  15th  day  of  May,  1838,  send  the  following  proposal  to  a  large  number  of  com- 
missioners to  the  Assembly  met  in  another  place,  viz  : 

"  Resolved,  That  while  we  reg-ard  with  deep  sorrow  the  existing  difficulties  in 
our  beloved  church,  we  would  fondly  hope  that  there  are  no  insurmountable  ob- 
stacles in  the  way  of  averting  the  calamities  of  a  violent  dismembennent,  and  of 
securing  such  an  organization  as  may  avoid  collisions,  and  secure  the  blessings  of 
a  perpetual  harmonious  action." 

"Resolved,  That  we  are  ready  to  co-operate  in  any  efforts  for  pacification  which 
are  constitutional,  and  which  shall  recognize  the  regular  standing  and  secure  the 
rights  of  the  entire  church,  including  those  portions  which  the  acts  of  the  last  Ge- 
neral Assembly'  were  intended  to  exclude," 

"Resolved,  That  a  committee  of  three  be  now  appointed,  respectfully  to  commu- 
nicate the  foregoing  resolutions  to  those  commissioners  now  in  session  in  this  city, 
who  are  at  present  inclined  to  sustain  the  acts  of  ihe  last  General  Assembly,  and 
inquire  vvhetiier  they  will  open  a  friendly  conference  for  the  purpose  of  ascertain- 
ing if  some  constitutional  terms  of  pacification  may  not  be  agi-eed  upon." 

While  this  proposal  was  under  consideration,  it  was  resolved  by  the  meeting, 

"That,  should  a  portion  of  the  commissioners  to  the  next  General  Assembly  at- 
tempt to  organize  the  Assembly,  without  admitting  to  their  seats  commissioners 
from  all  the  presbyteries  recognized  in  the  organization  of  the  General  Assembly 
of  1837,  it  will  then  be  the  duty  of  the  commissioners  present  to  organize  the  Ge- 
neral Assembly  of  1838,  in  all  respects  according  to  the  constitution,  and  to  trans- 
act all  other  necessary  bvisiness  consequent  upon  such  organization." 

To  our  communication  we  received  the  following  answer: 

"  Tiie  committee  on  tlie  communication  from  '  the  meeting-  of  commissioners,' 
now  in  session  in  the  lecture  room  of  the  First  Church,  presented  the  following 
pi'eamble  and  resolutions,  which  were  adopted:  viz.: 

Whereas  the  resolutions  of  nhe  meeting,' whilst  they  profess  a  readiness  «to 


221 

co-operate  in  any  efforts  for  pacification,  which  are  constitutional,'  manifestly  pro- 
ceed upon  the  erroneous  supposition  that  the  acts  of  the  last  General  Assembly, 
declaring  the  four  Synods  of  the  Western  Reserve,  Utica,  Geneva  and  Genessee 
out  of  the  ecclesiastical  connexion  of  our  church,  w^ere  unconstitutional  and  invalid, 
and  the  convention  cannot  for  a  moment  consent  to  consider  them  in  this  light ; 
therefore. 

Resolved  unanimously.  That  the  convention  regard  the  said  overture  of  'the 
meeting,'  however  intended,  as  founded  upon  a  basis  which  is  wholly  inadmissible, 
and  as  calculated  only  to  disturb  that  peace  of  our  church,  wliich  a  calm  and  firm 
adherence  to  those  constitutional,  just,  and  necessary  acts  of  the  last  General  As- 
sembly, can  alone,  by  the  blessing  of  Divine  Providence,  establish  and  secure. 

Resolved,  That,  in  the  judgment  of  the  convention,  the  resolution  of  the  last  Ge- 
neral Assembly,  which  provides,  in  substance,  that  all  churches  and  ministers  within 
the  said  four  synods,  which  are  strictly  Presbyterian  in  doctrine  and  order,  and  wish 
to  unite  with  us,  may  apply  for  admission  into  those  presbyteries  belonging  to  our 
connexion  which  are  most  convenient  to  their  respective  locations ;  and  that  any 
such  presbytery  as  aforesaid,  being  strictly  Presbyterian  in  doctrine  and  order,  and 
now  in  connexion  with  either  of  the  said  synods,  as  may  desire  to  unite  with  us,  are 
directed  to  make  application,  with  a  full  statement  of  their  case,  to  the  next  « Ge- 
neral Assembly,  which  will  take  order  therein,'  furnishes  a  fair  and  easy  mode  of 
proceeding,  by  which  all  such  ministers,  churches,  and  presbyteries,  within  the 
said  synods,  as  are  really  desirous  to  be  '  recognized'  as  in  regular  standing  with 
us,  and  as  proper  parts  of  our  'entire  church,'  may  obtain  their  object  without 
ti'ouble  and  without  delay." 

By  this  answer,  all  prospect  of  conciliation  or  an  amicable  division  being  fore- 
closed, we  did,  after  mature  consideration  and  fervent  prayer,  proceed,  at  a  proper 
time  and  place,  to  organize,  in  a  constitutional  manner,  tlie  General  Assembly  of 
1838  ;  which,  being  accomplished  on  our  part,  without  violence  or  tumult,  the 
Assembly  adjourned  to  the  First  Presbyterian  Cliurch. 

During  the  session  of  the  Assembly,  on  Wednesday,  May  24th,  the  following 
resolution  was  passed,  viz : 

"  Resolved,  That  this  body  is  willing  to  agree  to  any  reasonable  measures,  tend- 
ing to  an  amicable  adjustment  of  the  difficulties  existing  in  the  Presbyterian  Church, 
and  will  receive  and  respectfully  consider  any  propositions  which  may  be  made  for 
that  purpose." 

Beside  these  overtures  for  peace,  influential  members  of  the  Assembly  held  per- 
sonal conference  with  members  of  the  other  body,  till  it  was  ascertained  that  there 
was  no  hope  of  an  amicable  settlement  of  differences. 

In  the  retrospect  of  this  mournful  history,  we  are  compelled  to  regard  the  exci- 
sion of  the  four  Synods  and  the  Third  Presbytery  of  Philadelphia,  with  the  setting 
up  a  new  test  of  doctrine  and  measures,  as  an  exercise  of  power  by  the  Assembly 
unknown  to  the  constitution,  and  dangerous  to  the  purity  and  liberty  of  the  church, 
perpetuating  to  an  accidental  majority  unlimited  and  irresponsible  power,  and 
affording  to  minorities  only  such  protection  as  may  be  found  in  passive  obedience 
and  non-resistance. 

We  could  not  fail  to  perceive,  in  a  General  Assembly  concentrating  in  itself  leg- 
islative, judicial,  and  executive  power,  and  dispensing  the  discipline,  the  honours, 
and  the  copious  revenues  of  the  church,  the  elements  of  an  ecclesiastical  organi- 
zation, which,  with  less  pretension  in  the  beginning,  had  once,  for  more  than  ten 
centuries,  subverted  the  liberties  and  rolled  back  the  civilization  of  the  world. 

To  have  acquiesced  in  such  concentration  of  Irresponsible  ecclesiastical  power 
and  patronage,  would  have  been  to  abandon  the  constitution  of  the  cl^urch,  which 
we  had  solemnly  engaged  to  defend;  to  expose  large  amounts  of  property  to  di- 
version fi'om  its  intended  use,  to  subject  the  churches  to  a  wide-spread,  vexatious 
litigation  ;  to  abandon  to  aggression  and  division,  a  large  and  efficient  body  of  con- 
cordant churches  with  their  pastors;  to  surrender  rights  of  conscience,  and  free 
inquiry,  and  charitable  enterprise,  to  an  organization  never  recognized  by  Heaven 
as  their  keeper,  or  clothed  by  our  constitution  with  their  power;  and,  finally,  to 
throw  apparently  the  example  of  our  extended  and  powerful  church — the  patron, 
hitherto,  of  constitutional  liberty — on  the  side  of  those  elements  of  strife  and  vio- 
lence, which  already  so  powerfully  agitate  tlie  nation. 

We  love  and  honour  the  Confession  of  Faith  of  the  Presbyterian  Church,  as  con- 
taining more  well-defined  fundamental  truth,  with  less  defect  than  appertains' to 
any  other  human  formula  of  doctrine,  and  as  calculated  to  hold,  in  intelligent  con- 
cord, a  greater  number  of  sanctified  minds  than  any  which  could  now  be  formed  ; 

19* 


222 

and  we  disclaim  all  desigri,  past,  present,  or  future,  to  change  it.  But  it  is  not  tlie 
Bible,  nor  a  substitute  for  the  Bible,  nor  a  stereotj'ped  page,  to  be  merely  com- 
mitted to  memory,  by  unreflecting,  confiding  minds,  without  energy  of  thought^ 
and  a  prayerful,  faithfid  searcliing  of  the  Scriptures.  It  is  itself  an  illustrious  monu- 
ment of  the  independent  investigation  of  the  most  gifted  minds,  and  breathes  and 
inspires  the  spirit  which  formed  it. 

We  impute  to  our  brethren  no  intention  of  producing  the  results  which  we  an- 
ticipate from  their  measures,  but  good  intentions  do  not  change  the  nature  or  avert 
the  mischiefs  of  erroneous  principles  and  injurious  actions.  It  is  a  matter  of  his- 
tory, that  some  of  the  greatest  calamities  of  the  church  have  flowed  from  principles 
and  innovations  introduced  by  good  men,  and  with  the  best  intentions. 

And  now,  beloved  brethren,  we  beseech  you  to  unite  with  us  in  thanksgiving  to 
God,  for  the  harmony,  and  kind  feeling,  and  decision,  which  have  pervaded  our  de- 
liberations and  action,  and  for  those  wide-spread  and  exuberant  effusions  of  the 
Sjiirit  the  past  year,  which,  amid  unusual  sorrows,  and  fears  of  deserved  judgments, 
have  caused  the  tide  of  spiritual  prosperity  to  flow  deep  and  broad,  the  expression 
of  sovereign  mercy  and  the  pledge  of  future  love. 

It  is  our  desire  and  expectation  that  ye  will  persevere  in  well  doing,  and  not  be 
seized  with  any  sudden  amazement,  through  manifold  temptations  and  trials  of  your 
faith  and  patience,  and  tliat  you  will  not  be  moved  away  from  the  gospel  which  ye 
have  heard,  and  the  "form  of  sound  words"  and  salutary  discipline,  so  influential 
in  our  past  prosperity. 

We  exhort  that  fervent  charity  be  maint.iined  among  you,  and  a  spirit  of  prayer 
for  the  continued  presence  and  power  of  the  Holy  Spirit,  and  devotedness  to  those 
hibours  which  God  especially  employs  for  the  promotion  of  revivals  of  religion,  the 
great  end  of  all  means,  and  the  comprehension  of  all  spiritual  good. 

But  while  tiiese  things  are  faitlifuUy  done,  we  pray  you  that  other  duties  of  im- 
perious obligation  and  urgent  necessity  be  not  neglected  ;  particularly  that  your 
charity  for  Home  and  Foreign  Missions,  and  the  education  of  a  lioly  ministry,  and  for 
all  our  long-clierished  voluntary  associations,  be  not  suffered  to  decline,  but  rather 
to  flow  on  with  augmented  power,  and  faith,  and  prayer. 

That  especial  care  be  taken  to  send  and  sustain  a  full  repi-esentation  of  the 
Church,  as  a  means  of  a  mutual  communication  of  knowledge,  the  culture  of  con- 
fidence, and  the  production  of  wise  counsels. 

And  now,  bretliren,  we  commend  you  to  Him  who  is  "able  to  keep  you  from 
falling,  and  to  present  you  faultless  before  the  presence  of  his  glory  with  exceed- 
ing joy,  praying  "that  ye  might  be  filled  with  the  knowledge  of  his  will,  in  all 
wisdom  and  spiritual  understanding,  that  ye  might  walk  worthy  of  the  Lord  unto 
all  pleasing,  being  fruitful  in  every  good  work,  and  increasing  in  the  knowledge  of 
God  ;  sti-engthened  with  all  might  according  to  his  glorious  power,  unto  all  patience 
and  long-sufl'ering  with  joyfulness." 

"Now  our  Lord  Jesus  Christ  himself,  and  God,  even  our  Father,  which  have 
loved  us,  and  given  us  everlasting  consolation  and  good  hope  through  grace,  com- 
fort your  hearts,  and  establish  you  in  every  good  word  and  work." 

Sam'l  Fisher,  Moderator. 
Ehskine  Mason,  Stated  Clerk. 

Fhiladelplda,  May  25th,  1838. 

The  Counsel  for  the  respondents  proposed  next  to  read  in  evi- 
dence, from  the  minutes  of  the  General  Assembly  of  1837,  to  estab- 
lish the  position  that  a  wide  difference  of  opinion  obtained  between 
the  two  parlies  in  "  doctrinal  tenets." 

Objection  was  made,  on  the  ground  that  the  investigation  was 
irrelevant.  The  Counsel  for  the  relators  claiming  that  no  such  dif- 
ference as  alleged  existed,  that  they  were  prepared  for  an  investiga- 
tion of  the  subject,  but  considered  it  as  precluded  by  early  decisions 
of  the  Court,  and  by  the  very  nature  of  the  case  now  pending. 

Mr.  Hubbell,  for  the  respondents,  alleged  that  he  considered  it 
an  important  part  of  their  case,  and  had  accordingly  given  it  pro- 
minence in  his  opening  speech. 

Judge  Rogers. — I  know  that  you  did  so,  and  I  thpn  notified  you 
that  it  had  no  possible  bearing  on  this  case.     We  have  nothing  to 


223 

do  with  differences  of  doctrine  between  tiiese  parties.  No  doubt 
there  may  be  differences,  but  their  consideration  does  not  belong  to 
us  here,  in  this  court. 

The  Counsel  for  the  respondents  next  read  in  evidence,  to  show 
the  irregularity  of  the  proceedings  of  the  New  School  in  their  or- 
ganization in  1838,  certain  rules  of  the  Assembly,  pp.  16-18,  of  the 
Digest,  "Chap.  2.  Of  the  annual  organization  of  the  General  As- 
sembly," as  follows : 

Section  1.  Immediately  after  public  worship,  on  the  day  appointed  for  the 
meeting-  of  the  Assembly,  the  moderator  takes  the  chair  ;  and  having  called  the 
commissioners  to  order,  offers  prayer  to  Almighty  God  for  his  direction  and  blessing. 

Sec.  2.  The  moderator  then  calls  for  the  commissions  ;  which  being  delivered  to 
the  clerk,  and  publicly  read,  a  list  of  the  commissioners  Is  made  out,  in  the  order 
of  the  presbyteries. 

RULE. 

The  Assembly  having  proceeded  to  business  without  attending  sufficiently  to  the 
order  prescribed  in  the  constitution,  respecting  the  commissions  of  the  members  ; 
and  having  been  led  into  that  inattention  by  precedents  in  the  former  sessions  of 
the  General  Assembly  ;  it  was  thought  necessary  to  declare:  That  the  business 
ought  not,  in  future,  to  be  entered  upon  by  the  Assembly,  until  the  commissions 
delivered  to  the  clerk  shall  have  been  publicly  read,  according  to  the  express 
letter  of  the  constitution. — 1791.    Vol.  I.  page  26. 

Sec.  3.  The  list  of  the  commissioners  present  being  completed,  a  new  moderator 
is  chosen. 

Sec.  4.  A  moderator  having  been  duly  chosen,  the  former  moderator  before  he 
resigns  his  seat,  addresses  him  and  the  Assembly  thus  : 

Sir — It  is  my  duty  to  inform  you,  and  announce  to  this  house,  that  you  are  duly 
elected  to  the  office  of  moderator  in  this  General  Assembly.  For  your  direction  in 
office,  and  for  the  direction  of  this  Assembly  in  all  your  deliberations,  before  I 
leave  this  seat,  I  am  to  read  to  you  and  this  house  the  rules  contained  on  the  records 
of  this  Assembly;  which  I  doubt  not  will  be  carefully  observed  by  both,  in  con- 
ducting the  business  that  may  come  before  you. 

[Here  the  moderator  is  to  read  the  rules,  and  afterwards  add,] 

Now,  having  read  these  rules,  according  to  order,  for  your  instruction  as  mode- 
rator, and  for  the  direction  of  all  the  members,  in  the  management  of  business, 
praying  that  Almighty  God  may  direct  and  bless  all  the  deliberations  of  this  Assem- 
bly for  the  glory  of  his  name,  and  for  the  edification  and  comfort  of  the  Presby- 
terian Church  in  the  United  States — I  resign  my  place  and  office  as  moderator. — 
1791.   Vol.  I.  p.  30 

Mr.  HubbelL— This  Digest  is  dated  1820.  This  was  the  rule 
of  the  Assembly  before  the  alteration  to  which  the  witnesses  have 
testified.     We  now  offer  from  the  same  book,  pp.  24-27. 

Section  9.  General  Rules  for  regulating  the  proceedings  of  the  Assemblv, 
which  are  read  by  the  moderator  before  he  resigns  his  seat  to  his  successor. 

I.  The  moderator  shall  take  the  chair  at  the  hour  to  which  the  Assembly  stands 
adjourned ;  shall  immediately  call  the  members  to  order ;  and  on  the  appearance  of 
a  quorum  shall  open  the  session  with  prayer,  and  cause  the  minutes  of  the  preced- 
ing sessions  to  be  read  ;  and  on  every  adjournment  shall  conclude  with  prayer. 

II.  The  moderator  may  speak  to  points  of  order,  in  preference  to  other  mem- 
bers ;  rising  from  his  seat  for  tiiat  purpose ;  and  shall  decide  questions  of  order, 
subject  to  an  appeal  to  the  house  by  any  two  members. 

III.  The  General  Assembly,  at  every  meeting,  shall  appoint  a  Committee  of  Bills 
and  Overtures,  to  prepare  and  digest  business  for  the  Assembly.  Any  person  think- 
ing himself  ag-grieved  by  this  committee,  may  complain  to  the  Assembly. 

IV.  Petitions,  questions  relating  eithei*  to  doctrine  or  order,  intended  to  be 
brought  before  the  Assembly  for  decision,  and  in  general  all  new  propositions, 
tending  to  general  laws,  shall  usually  be  laid  before  the  Committee  of  Bills  and 
Overtures,  before  they  be  offered  to  the  Assembly. 

\.  The  Assembly  shall  also,  at  every  meeting,  appoint  a  committee,  to  be  styled 
the  Judicial  Committee  :  whose  duty  it  shall  be  to  take  into  consideration  all  appeals 
and  references  brought  to  the  Assembly ;  to  ascerUiin  whether  they  are  in  order, 


224 

to  digest  and  arrange  all  the  documents  relating  to  the  same  ;  and  to  propose  to 
the  Assembly  the  best  method  of  proceeding  in  each  case. 

VI.  A  motion  made,  must  be  seconded,  and  afterwards  repeated  by  the  mode- 
rator or  read  aloud,  before  it  be  debated  :  and  every  motion  shall  be  reduced  to 
writing,  if  the  moderator,  or  any  member,  require  it. 

VII.  Any  member,  who  shall  have  made  a  motion,  shall  have  liberty  to  withdraw 
it,  before  any  debate  had  thereon :  but  not  afterwards,  without  leave  of  the  As- 
sembly. 

Viri.  On  questions  of  order,  adjournment,  postponement,  commitment,  or  the 
previous  question,  no  member  shall  speak  more  than  once.  On  all  the  other  ques- 
tions, each  member  may  speak  twice,  but  not  oftener,  without  express  leave  of 
the  house. 

IX.  When  a  question  is  under  debate,  no  motion  shall  be  received  unless  to 
amend  it,  to  commit  it,  to  postpone  it,  for  the  previous  question,  or  to  adjourn. 

X.  The  previous  question  shall  be  in  this  form.  Shall  the  main  question  he  now 
put  ?  and  until  it  is  decided,  shall  preclude  all  amendment  and  farther  debate  of 
the  main  question.  If  the  previous  question  be  decided  in  the  affirmative,  the 
debate  on  the  main  question  may  proceed  :  but  if  it  be  decided  in  the  negative,  the 
effect  shall  be  to  arrest  the  discussion,  and  to  produce  an  indefinite  postponement 
of  the  main  question. 

XI.  An  amendment  may  be  moved  on  any  motion,  and  shall  be  decided  before 
the  original  motion. 

XII.  If  a  question  under  debate  contain  several  parts,  any  member  may  have  it 
divided,  and  a  question  taken  on  each  part. 

XIII.  Every  member,  when  speaking',  shall  address  himself  to  the  chair ;  and 
shall  treat  his  fellow  members,  especially  the  moderator,  with  decency  and  respect : 
If  a  member  act  disorderly,  it  shall  be  the  duty  of  the  moderator,  and  the  privilege 
of  the  other  members  to  call  him  to  order. 

XIV.  A  question  shall  not  be  called  up,  or  reconsidered,  at  the  same  sessions 
of  the  Assembly  at  which  it  has  been  decided,  unless  by  consent  of  two-thirds  of 
the  members  who  were  present  at  the  decision. 

XV.  Any  member,  wlio  may  think  himself  aggrieved  by  a  decision  of  the  Gene- 
ral Assembly,  shall  have  his  dissent  or  protest,  with  his  reasons,  entered  on  the 
records  of  the  Assembly,  or  filed  among  their  papers,  if  given  in  before  the  rising 
of  the  Assembly. 

XVI.  If  any  member  act  indecently,  or  disorderly,  contrary  to  these  rules,  the 
moderator  shall  reprove,  or  otherwise  censure  him,  as  the  Assembly  shall  judge 
proper:  and  if  any  member  shall  think  himself  denied  of  any  right,  or  unjustly 
blamed  by  the  moderator,  he  shall  not  speak  disrespectfully  to  him,  but  modestly 
require  the  decision  of  the  house  in  the  case.* 

Respondents  called  the  Rev.  William  S.  Plumer.  Interrogated  by 
Ml'.  Hubbell,  the  witness  said :  I  was  a  delegate  to  the  General  As- 
sembly of  1838.  I  attended  the  organization;  was  a  commissioner 
from  the  Presbytery  of  East  Hanover,  in  the  State  of  Virginia. 
The  Presbytery  of  East  Hanover  includes  in  it  such  portions  of  the 
Presbyterian  Church  as  are  within  the  tide-water  district  of  Vir- 
ginia, excepting  that  part  lying  north  of  the  Rappahannock  river, 
and  there  it  includes  two  counties  on  the  eastern  shore.  My  resi- 
dence is  in  Richmond.  I  was  at  the  church  when  the  Assembly 
met,  in  the  early  part  of  the  morning  of  the  17th  of  May  last.  I 
suppose  I  came  there  about  9  o'clock.  I  know  all  the  doors  of  the 
church ;  three  of  those  at  which  the  congregation  usually  enter 
were  open  from  10  o'clock,  and  I  think  were  not  closed  at  all  that 

*  These  rules  remain  as  they  were  adopted  by  the  Assembly  in  1789,  except 
that  No.  IX.  was  slightly  altered  in  1791,  and  No.  IV.  in  1819,  when  No.  V.  was 
inserted. 

[It  is  proper  here  to  remark,  however,  that  since  about  1833,  each  Assembly 
adopts  the  rules  for  itself  after  the  election  of  moderator.] 


225 

morning.  I  occupied,  in  the  house,  a  position  a  little  at  the  left  of 
the  moderator,  as  he  sat  in  the  chair  which  he  usually  occupies.  I 
did  not  sit  in  one  of  ihe  pews,  but  on  a  chair  in  the  area  in  front  of 
the  pews,  and  near  to  the  moderator.  This  plan  of  the  house  which 
has  been  exhibited  here,  is  not  exactly  correct.  That  portion  of 
the  front  pews  which  is  represented  on  the  plan  as  being  circular, 
is  now  cut  off  in  such  manner  that  it  is  straight  and  at  right  angles 
with  the  aisle.  Dr.  Witherspoon  was  present,  and  sat  not  far  from 
me,  on  the  right  of  where  I  sat.  Dr.  Phillips  was  not  far  from 
me  on  the  left ;  perhaps  about  ten  feet.  Dr.  Miller,  Dr.  Harris,  and 
Dr.  Breckinridge,  were  all  in  the  neighbourhood  where  I  sat.  Mr. 
Krebs  sat  not  far  from  me,  at  the  side  table  nearest  to  me.  Dr. 
Samuel  P.  Wilson,  one  of  the  witnesses,  was  also  near  me,  in  a 
position  which  he  described  the  other  day.  James  C.  Wilson,  of 
Virginia,  sat  near  me.  When  the  moderator  descended  from  the 
pulpit  and  took  his  station  in  front  of  it,  in  the  usual  manner,  to 
organize  the  Assembly,  he  took  the  chair,  and  stated  that  the  first 
business  would  be  the  hearing  of  the  report  of  the  Committee  on 
Commissions.  The  clerk,  Mr.  Krebs,  was  then  standing.  He  did 
not,  however,  instantly  commence  reading  the  roll.  He,  however, 
had  his  papers  with  him.  Before  he  had  commenced  reading  it. 
Dr.  Patton  rose  and  stated  that  he  had  certain  resolutions  which  he 
wished  then  to  offer.  The  moderator.  Dr.  Elliott,  told  him  that  he 
v/as  out  of  order,  as  the  first  business  which  must  necessarily  be 
taken  up  was  the  report  of  the  committee  on  the  roll.  Dr.  Patton 
replied  that  his  resolutions  related  to  that  very  subject.  The  mode- 
rator said,  "  You  are  out  of  order,  sir,  at  this  time,"  or  "  as  the 
house  is  not  yet  organized;"  something  conveying  that  idea.  Dr. 
Patton  said  he  would  appeal,  and  the  moderator  said  the  appeal 
was  out  of  order.  Dr.  Patton  then  sat  down,  and  the  clerk,  Mr. 
Krebs,  proceeded  to  read  the  report  on  the  roll,  and  having  completed 
it,  as  I  suppose,  Dr.  Mason,  sitting  on  the  middle  aisle,  six  or  seven 
pews  from  the  front,  rose  and  said  that  he  moved,  or  that  he  wished 
to  move,  that  certain  commissions  which  he  held  in  his  hand  should 
be  entered  on  the  roll.  I  should,  however,  state  that  previous  to 
this,  the  moderator  had  announced  that  if  there  were  any  persons 
present  who  had  commissions  which  they  had  not  presented  to  the 
clerks  and  had  them  enrolled,  they  would  now  present  them,  in 
order  that  the  roll  might  be  completed.  It  was  immediately  subse- 
quent to  this  call,  that  Dr.  Mason  rose  and  stated  that  he  wished 
the  names  of  the  commissioners  whose  commissions  he  held  in  his 
hand,  and  then  presented,  to  be  placed  on  the  roll,  or  that  their 
commissions  should  be  examined  and  they  enrolled.  The  mode- 
rator asked  him  w^hat  presbyteries  those  commissions  were  from; 
and  Dr.  Mason  replied  that  they  were  from  the  presbvteries  within 
the  bounds  of  the  four  Synods  of  Utica,  Geneva,  Genessee,  and 
Western  Reserve.  The  moderator  replied  that  they  could  not  be 
received,  or,  "  You  are  out  of  order  at  this  time."  I  think  the  lat- 
ter was  the  expression  he  used,  but  am  not  positive.  At  this  time 
Dr.  Mason  seemed  to  be  greatly  embarrassed,  but  did  not  manifest 
it  except  by  his  agitation  and  a  tremulousness  of  his  voice.     He 


226 

said,  very  politely,  that,  with  great  respect  for  the  chair,  I  must 
appeal  from  its  decision.  The  moderator  told  him  he  was  out  of 
order.  Dr.  Mason  then  sat  down,  and  to  some  one  in  the  pew 
made  a  remark  which  I  am  not  certain  that  I  heard,  and  therefore 
do  not  state  it.  I  am  not  certain  whether  I  gathered  it  from  hear- 
ing him  at  the  time,  or  from  report  since.  Dr.  Mason  stated  that 
these  commissions  had  been  presented  to  the  clerks  and  refused 
by  them,  and  that  he  was  desirous  to  get  them  on  the  roll.  As  soon 
as  Dr.  Mason  had  taken  his  seat,  Mr.  Squier  rose  and  stated  that 
he  had  a  commission  from  the  Presbytery  of  Geneva,  and  demand- 
ed that  his  name  be  placed  on  the  roll,  or  words  to  that  effect.  The 
moderator  asked  what  presbytery  he  came  from.  Mr.  Squier  re- 
plied that  he  came  from  the  Presbytery  of  Geneva.  The  modera- 
tor then  asked  if  the  Presbytery  of  Geneva  belonged  to  the  Synod 
of  Geneva.  {Belonged  was  his  word.)  Mr.  Squier  replied  that  the 
Presbytery  of  Geneva  was  within  the  bounds  of  that  synod.  The 
moderator  then,  waving  his  hand,  said,  "  We  do  not  know  you."  I 
was  reclining  at  the  time  against  the  table,  with  my  head  about 
five  feet  from  the  floor.  I  heard  a  member  nearly  opposite  to  me, 
after  a  little  consultation  which  attracted  my  notice,  move  the  ap- 
pointment of  a  Committee  of  Elections.  I  am  not  certain  that  the 
motion  was  seconded ;  my^  impression  is  that  it  was.  I  will  state 
the  business  that  was  going  on,  according  to  my  recollection.  Be- 
fore the  motion  was  announced  by  the  chair,  the  interruption  be- 
gan. I  noticed  a  little  stir  amongst  some  of  the  members,  and  ob- 
served Dr.  Beecher,  and  Dr.  Taylor  of  Connecticut,  sitting  together, 
I  think  in  the  next  pew  behind  Mr.  Cleaveland,  They  were  mov- 
ing their  hands,  and  saying,  "  Go  on,  go  on."  I  think  that  I  heard 
them  say  the  words.  They  were  certainly  waving  their  hands,  but 
am  not  positive  that  I  heard  the  words.  I  am  certain  that  I  could 
not  be  mistaken  as  to  their  gestures.  About  this  time,  Mr.  Cleave- 
land, of  Detroit,  in  Michigan,  rose,  and  first  pronounced  a  few 
words  which  I  did  not  hear  distinctly.  He  did  not  address  the 
moderator,  nor  any  other  person.  He  spoke  in  his  usually  clear 
and  loud  voice.  Mr.  Cleaveland  usually  speaks  very  clearly  and 
distinctly.  His  face  was  toward  the  moderator,  and  he  began  with 
"  Whereas ;"  but  he  turned  his  face  toward  the  opposite  side  of  the 
aisle,  and  his  voice  became  lower,  and  toward  the  close  I  could 
not  hear  what  he  said.  I  heard  him  say  that  he  did  not  wish  to  be 
discourteous.  I  could  hear  the  words,  "a  constitutional  organiza- 
tion must  be  obtained  at  this  time  and  place,"  and  "  in  accordance 
with  the  advice  of  gentlemen  learned  in  the  law."  I  heard  his 
apology,  that  he  hoped  it  would  not  be  considered  discourteous, 
and  I  thought  that  I  heard,  "least  interruption  and  shortest  time 
possible."  Thus  much  was  from  his  paper.  I  then  heard  what  I 
supposed  to  be  his  voice,  (for  it  had  now  lost  its  usual  clearness  and 
energy,  and  was  tremulous  and  agitated,)  saying,  "  I  nominate  Dr. 

B ;"  Beman,  I  supposed  it  was  at  the  time  ;  or,  "  I  move  that 

Dr.  Beman."  To  what  he  nominated  him,  I  did  not  know.  I  some- 
how had  the  idea  distinctly  lodged  in  my  mind  that  the  name  of 
Dr.  Beecher  had  been  used,  at  some  time  after  Dr.  Beman  was 


227 

nominated,  but  to  what  I  did  not  hear.  Whether  I  mistook  that  for 
Fisher  or  Beman,  I  cannot  say.  After  the  nomination  of  Dr.  Be- 
man,  I  did  not  hear  any  thing,  until  what  would  seem  to  have  been 
an  affirmative  vote,  which,  for  loudness,  I  may  confidently  say  that 
I  never  heard  equalled  on  the  hustings  of  a  Virginia  court.  I  am 
certain  that  it  might  have  been  heard  the  whole  distance  across 
Washington  Square,  at  any  quiet  period  of  the  twenty-four  hours. 

Question  by  Mr.  Meredith. — Do  you  mean  to  be  understood  as 
saying  that  the  individual  could  have  been  heard  the  whole  dis- 
tance from  the  Seventh  Presbyterian  Church  in  Ranstead  court  to 
the  further  side  of  Washington  Square  ? 

Witness. — I  did  not  say,  nor  did  I  intend  to  say,  that  he  could 
have  been  heard  from  Ranstead  court  to  the  further  side  of  Wash- 
ington Square.  But  what  I  said  was,  that  he  could  have  been 
heard  across  Washington  Square.  I  am  not  certain  who  this 
stentor  was.  I  thought  it  was  a  small  gentleman,  mounted  on  the 
back  of  a  pew,  upon  the  little  riband  at  the  top.  Why  I  thought  so 
I  cannot  tell.  The  gentleman  was  not  facing  me,  and  I  did  not 
know  him.  The  back  part  of  his  hair  indicated  that  he  was  an 
old  man,  considerably  older  than  myself. 

[The  court  adjourned  while  the  witness  was  on  the  stand.  At 
the  opening  of  the  court  in  the  afternoon,  Mr.  Plumer  resumed.] 

I  closed  this  morning,  my  account  of  the  circumstances  attending 
the  first  vote  on  the  motion  of  Mr.  Cleaveland.  So  far,  I  have  told 
all  that  I  saw,  but  I  do  not  suppose  that  I  saw  all  that  transpired, 
for  there  was  a  dense  mass  of  people  standing  up,  many  of  them 
on  the  seats  of  the  pews.  From  this  time  I  heard  no  more  nomi- 
nations, and  even  as  to  that  of  Dr.  Beman,  I  may  be  mistaken. 
There  were  three  or  four  very  loud  responses  of  "  aye,'"  but  I  could 
not  tell  to  what  they  were  responses.  Not  long  after  the  last  "  aye," 
there  was  a  movement  towards  the  north  end  of  the  church,  down 
the  aisle  from  the  moderator.  The  persons  who  had  been  acting 
in  this  scene,  removed  to  a  considerable  distance,  possibly  twenty- 
feet.  I  afterwards  heard  nothing  distinctly,  until  a  gentleman, 
whom  I  took  to  be  President  Beecher,  but  if  it  was  he,  he  had 
changed  his  apparel  since  I  had  travelled  with  him,  a  few  days 
before,  came  to  the  middle  door,  and  proclaimed  very  loudly,  that 
the  General  Assembly  had  adjourned  to  meet  in  Mr.  Barnes'  church 
forthwith.  There  were  two  other  announcements  of  the  same  thing, 
by,  I  think,  some  person  of  a  difl^erent  voice.  The  next  one  was 
at  the  east  door,  at  the  north  end  of  the  house.  The  last  an- 
nunciation was  at  the  door  nearest  the  pulpit,  on  the  moderator's 
right,  and  the  east  side  of  the  house.  I  saw,  about  this  time,  some 
clapping  of  the  hands,  and  heard  some  hissing,  in  i-he  gallery.  I  do 
not  know  whether  any  persons  in  the  gallery  voted  or  not.  No 
person  near  me  voted.  I  could  not  have  voted,  if  I  had  wished  to. 
I  could  not  hear  the  question,  so  as  to  enable  me  to  vote  intelli- 
gently. I  did  not  hear  any  reversal  of  the  questions  put  by  Mr. 
Cleaveland.  I  firmly  believe  that  there  was  not  any  reversal  o{ 
the  questions ;  if  there  was,  I  certainly  did  not  hear  it.  The  next 
"  az/e"  came  so  soon,  that  it  confirmed  my  impression,  for  no  time 


228 

was  allowed  to  put  both  the  negative  and  another  motion.  Of 
course,  any  answer  in  regard  to  the  time  occupied  by  these  pro- 
ceedings, must  be  exceedingly  vague.  My  impression  that  day, 
when  conversing  on  the  subject,  was,  that  it  did  not  exceed  five 
minutes.  I  took  no  note  of  time  by  my  watch,  nor  did  1  think  about 
time;  my  attention  was  occupied  with  what  was  going  on.  I  now 
know  Mr.  Joshua  Moore.  He  sat  in  the  General  Assembly  in  the 
Seventh  Presbyterian  Church.  After  the  moderator  had  called  for 
commissions,  1  saw  Mr.  Moore  come  to  the  clerk's  seat,  but  what 
he  said  or  did  I  don't  know.  I  first  learned  that  Dr.  Fisher  was 
appointed  moderator,  some  time  after  the  proclamation  had  been 
made  at  the  doors,  that  the  General  Assembly  had  adjourned,  whe- 
ther that  day  or  the  next,  I  cannot  be  certain.  I  was  elected  mo- 
derator of  the  Assembly  which  sat  in  the  church  in  Ranstead  Court 
that  year. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said:  I  became  acquainted  with  Mr.  Cleaveland  some  years  ago  in 
Boston,  Massachusetts.  Mr.  Cleaveland  is  ordinarily  very  prompt 
in  his  manner  of  doing  business.'  I  think  that  when  unembarrassed, 
he  would  put  a  question  as  quickly  as  any  other  man,  with  an 
equally  stout  voice.  I  do  not  think  my  estimate  of  the  length  of 
time  that  these  proceedings  occupied,  is  testimony.  If  he  said 
"All  those  who  are  in  favour  will  say  Aye,"  and  "All  those  who 
are  opposed  will  say  No,"  he  could  say  it  as  quick  as  I  have  done. 
The  book  requires,  that  the  question  should  be  stated  when  it  is  put. 
I  ought  perhaps  to  state,  as  descriptive  of  the  witness,  that  I  am 
editor  of  "  The  Watchman  of  the  South."  That  paper  was  esta- 
blished in  August,  1837;  and  has  taken  an  active  part  in  the  discus- 
sion of  the  Assembly's  proceedings  of  that  year.  It  was  for  the 
purpose  of  sustaining  those  proceedings,  among  others,  that  the 
journal  was  established. 

Rev.  David  Elliott,  D.  D.,  called  by  the  respondents. 

Interrogated  by  Mr.  Hubbell,  the  witness  said :  I  presided  as  mo- 
derator at  the  opening  of  the  General  Assembly  of  1838,  having 
been  the  moderator  of  the  previous  General  Assembly  of  1837. 
Immediately  after  the  religious  exercises  were  concluded,  I  an- 
nounced from  the  pulpit  that  I  would  proceed,  as  soon  as  the  bene- 
diction should  be  pronounced,  to  constitute  the  General  Assembly 
with  prayer.  And  that  for  this  purpose  I  would  take  the  chair 
under  the  pulpit  which  is  usually  occupied  by  the  moderator  when 
presiding  in  the  General  Assembly.  I  did  so,  and,  accordingly, 
having  offered  prayer,  I  then  called  on  the  clerks  to  report  the  roll 
of  members,  if  they  had  one  formed.  Before  the  call  was  complied 
with  Dr.  Patton  rose,  and  stated  in  substance,  or  to  this  effect,  that 
he  wished  to  present  certain  papers  which  he  held  in  his  hand,  or 
to  offer  certain  resolutions  to  be  acted  on  by  the  house.  I  replied 
that  he  was  out  of  order,  as  the  first  business  was  the  report  of  the 
Committee  of  Commissions  on  the  roll.  He  said  these  resolutions 
related  to  the  roll,  and  that  they  would  occupy  but  little  time, 
or  to  that  effect.  At  this  time  the  clerk,  Mr.  Krebs,  had  risen, 
or  he  was  then  standing  on  my  left.  I  directed  him  to  proceed 
with  the   reading   of  the   roll,  and   about  that  time  Dr.  Patton 


229 

took  his  seat.  Mr.  Krebs  read  the  roll,  and,  having  some  papers 
in  his  hand,  presented  some  commissions,  as  he  said,  to  the  mode- 
rator, which  were  laid  on  the  desk  where  I  sat.  I  then  announced 
that  those  persons  whose  names  were  read  would  be  considered 
members  of  the  house,  and  continuously,  that  if  there  were  any 
other  commissioners  present  who  were  in  connexion  with  the  Ge- 
neral Assembly  of  the  Presbyterian  church,  who  were  not  enrolled 
and  who  had  not  had  an  opportunity  of  presenting  their  commissions, 
they  could  now  have  an  opportunity  to  present  them  and  be  enrolled. 
A  gentleman  whom  I  did  not  then  know,  but  whom  I  afterwards 
understood  was  Dr.  Mason,  of  New  York,  rose,  I  think  it  was  at 
this  time.  He  held  a  roll  of  papers  in  his  hand,  which  he  said  were 
certain  commissions  which  had  been  presented  to  the  Committee 
on  Commissions  and  by  them  refused,  and  that  he  now  presented 
them  and  moved  that  their  names  be  added  for  the  purpose  of 
completing  the  roll.  I  asked  him  where  those  commissioners  were 
from,  or  if  they  were  from  presbyteries  which  were  in  connexion 
■with  the  General  Assembly  of  the  Presbyterian  church.  I  am  not 
sure  which  expression  I  used,  but  one  of  them.  He  replied  that 
they  were  from  presbyteries  within  the  bounds  of  the  (Synods  of 
Utica,  Geneva,  Genessee  and  Western  Reserve.  I  then  stated  to 
him  that  he  was  out  of  order  at  this  time,  or  now,  using  one  or  the 
other  of  these  forms  of  expression.  He  said,  that  with  great  respect 
for  the  chair,  he  must  appeal  from  the  decision.  I  remarked  that 
the  appeal  was  also  out  of  order  at  that  time.  Mr.  Squier  then 
rose.  (I  did  not  recognize  him  at  the  time,  though  I  had  formerly 
been  acquainted  with  him.)  He  stated  that  he  held  in  his  hand  a 
commission  from  the  Presbytery  of  Geneva,  which  had  been  ten- 
dered to  the  clerks  or  Committee  of  Commissions,  and  refused  by 
them,  and  that  he  now  demanded  his  seat  in  the  Assembly.  I  asked 
him  if  that  presbytery  was  within  the  bounds  of  the  Synod  of  Ge- 
neva. He  replied  that  it  was.  I  replied,  "  We  do  not  know  you,  sii\" 
He  made  some  reply  which  I  do  not  recollect,  and  sat  down  with- 
out pressing  the  matter  any  further.  I  then  repeated  my  call  for 
the  same  kind  of  commissions  which  had  not  been  presented  to  the 
Committee  on  Commissions.  Before  the  last  words  of  this  call  were 
out  of  my  mouth,  Mr.  Cleaveland  rose,  and  commenced  either  read- 
ing or  speaking,  I  can't  say  which;  but  he  had  a  paper  before  him, 
in  both  hands,  towards  which  he  looked.  Whether  he  made  some 
prefatory  remarks,  or  began  with  reading,  I  do  not  know.  He  was 
frequently  called  to  order.  Several  persons,  around  me,  called 
"order,"  in  the  tone  usual  in  the  Assembly.  Mr.  Cleaveland,  how- 
ever, continued  to  read.  I  would  say,  at  this  time,  that  during  the 
whole  of  his  reading,  and  until  after  the  vote  on  the  nomination  of 
Dr.  Beman,  I  called  "order"  at  short  intervals.  I  did  this,  believ- 
ing it  to  be  my  otficial  duty  as  moderator.  He  did  not  address  the 
chair,  as  I  understood.  Either  simultaneously  with  the  rising  of 
Mr.  Cleaveland,  or,  as  I  rather  think,  a  little  after,  and  after  a  cry 
of  order,  some  person  rose,  and  moved  that  we  should  proceed  with 
our  regular  business,  by  appointing  a  Committee  of  Elections,  to 
whom  the  informal  commissions  might  be  referred.  The  motion  I 
20 


230 

entertained  as  an  officer  of  the  Assennbly,  and  announced  it,  but  it 
was  not  acted  on. 

This  was  doing  while  Mr.  ('leaveland  was  reading  or  speaking, 
and  diverted  my  attention  from  him,  and  I  did  not,  for  that  reason, 
hear  all  that  he  said.  What  I  heard  was  to  this  effect.  After  some 
remark,  about  not  being  able  to  get  on  with  the  business,  and  re- 
flections on  the  chair,  as  I  thought,  he  said  something  of  their  being 
advised  by  counsel  learned  in  the  law,  and  securing  a  constitutional 
organization;  but  these  things  were  not  in  juxtaposition.  Then 
towards  the  close,  I  heard  the  phrases,  "not  discourteous,"  "fewest 
words  and  shortest  time  possible,"  or  something  to  that  purport. 
He  then  moved  that  Dr.  Beman  should  take  the  chair,  or  be  mode- 
rator, I  don't  know  which.  After  this  he  put  the  question,  "  Those 
in  favour  of  the  motion  will  please  to  say  aye,"  or  words  to  the 
same  effect.  There  was  a  very  loud  response ;  some  of  the  voices 
I  regarded  as  unusually  loud,  and  there  were  a  few  dragging  votes. 
I  hardly  know  how  to  express  what  I  mean.  There  was  a  general 
burst  of  voices,  and  then  a  few  in  the  rear,  "aye,  aye."  I  have  an 
indistinct  recollection  of  a  few  noes,  simultaneous  with  the  ayes, 
either  from  the  gallery,  or  some  other  quarter  of  the  house.  1 
can't  say  whence  they  came,  but  they  were  simultaneous  with  the 
ayes.  Upon  this  vote  of  aye,  I  saw  Dr.  Beman  move  out  of  the 
pew  of  which  the  location  has  already  been  described,  six  or  eight 
pews  from  where  I  sat,  into  the  centre  aisle.  As  he  moved  out  a 
number  of  persons  from  both  sides  of  the  same  aisle  passed  into  it, 
simultaneously  with  him.  They  fell  into  his  rear,  and  turned  their 
backs  upon  me ;  and  the  mass  closing  up,  in  a  very  short  time  my 
view  was  obstructed.  What  then  passed  I  do  not  know.  They 
seemed  to  recede  the  distance  of  a  few  pews.  At  this  time,  there 
was  a  simultaneous  rising,  and  great  excitement  in  the  north  part 
of  the  house.  From  about  the  position  that  Dr.  Beman  left,  the 
great  mass  were  on  their  feet.  There  were  a  number  standing  on 
the  seats  of  the  pews,  and  some,  in  my  judgment  at  the  time,  on 
the  pew  backs.  I  remember,  that  there  was  a  small  man  on  the 
back  of  a  pew,  supporting  himself  on  the  shoulders  of  those  in  front 
of  him,  and  my  impression  was,  that  he  said  "  aye"  louder  than  any 
one  else.  I  had  continued  to  call  order  during  this  period.  Some 
gentleman  said,  "Is  it  not  possible  to  have  order?"  or  "Can  we 
not  have  order?'  I  said  I  had  done  all  I  could,  and  it  appeared  that 
the  confusion  could  not  last  long.  One  member,  if  not  more  than 
one,  requested  that  we  should  wait  a  little  until  order  could  be  re- 
stored. I  then  made  an  announcement  to  the  General  Assembly 
that  the  business  would  be  suspended  until  the  interruption  and 
tumult  subsided.  I  made  this  announcement  as  audibly  as  I  could. 
Up  to  this  time  1  had  been  standing.  When  I  made  this  announce- 
ment I  sat  down,  as  it  was  evident  the  members  could  not  hear  at 
present.  The  suggestion  came  from  the  neighbourhood  of  the  west 
door.  I  considered  it  altogether  as  an  ex  parte  organization.  I 
was  about  to  put  the  question  on  the  appointment  of  the  Committee 
of  Elections,  when  the  request  was  made  that  th'e  business  should 
be  suspended  until  the  tumult  had  subsided.     I  then  made  the  an- 


J 


231 

nouncement  that  the  business  was  suspended  for  the  present,  and 
I  sat  down,  as  I  stated  before.  After  this  I  heard  several  ayes, 
successively,  but  did  not  hear  any  motion,  except  on  the  nomina- 
tion of  Dr.  Beman.  While  I  was  thus  seated,  the  members  around 
the  chair,  for  a  considerable  distance  in  front,  were  quiet  in  their 
seats.  After  some  little  time,  the  actors  in  the  scene  of  disorder 
began  to  move  towards  the  north  door,  and  there  being  a  large 
mass  of  people  in  the  centre  aisle,  several  passed  over  the  pews  to 
the  north-east  door.  As  they  passed  out  somebody  proclaimed,  in 
a  loud  voice,  first  at  the  north  door,  and  afterwards  at  the  other 
doors,  successively,  that  the  General  Assembly  adjourned  to  meet 
forthwith  in  the  First  Presbyterian  Church.  I  am  unable  to  state 
how  long  the  whole  of  these  proceedings  occupied,  but  according 
to  the  best  of  my  judgment  and  recollection,  I  should  say  that  it 
was  from  four  to  six  minutes.  I  did  not  look  at  my  watch :  1  there- 
fore cannot  say  positively,  but  that  is  my  belief.  I  ought  to  have 
stated,  that,  at  the  time  they  passed  out,  there  was  a  great  increase 
of  noise.  There  was  clapping,  and  some  hissing,  though  not  much, 
from  the  galleries.  Most  of  the  sounds  seemed  to  be  of  approbation. 
After  they  had  left  the  house,  we  proceeded  to  appoint  a  Committee 
of  Elections,  and  to  the  other  business  of  the  house.  I  did  not  hear 
Mr.  Cleaveland's  motion  reversed.  I  recollect  when,  about  the  time 
Mr.  Squier  sat  down,  the  clerks  having  closed  their  report,  and  the 
announcement  in  regard  to  other  commissions  having  been  made, 
there  was  a  commissioner,  or  a  person  claiming  to  be  such,  who 
stated  that  he  came  from  some  presbytery,  and  had  a  commission, 
for  which  he  seemed  to  be  searching  in  his  pocket,  but  did  not  find 
it,  and  said  that  he  must  have  left  it  at  his  lodgings.  I  said,  when 
he  had  it,  the  Committee  of  Commissions  would  attend  to  that  mat- 
ter. He  declared,  I  think,  that  he  had  the  commission  in  the  city, 
but  that  he  had  left  it  at  his  lodgings.  I  cannot  say  certainly, 
whether  this  was  Mr.  Moore.  I  have  some  acquaintance  with  that 
gentleman,  but  my  attention  at  the  time  was  diverted,  and  I  cannot 
say  who  it  was.  The  commission  was  not  afterwards  presented  to 
me,  but  I  know  that  Mr.  Moore  subsequently  took  his  seat.  I 
ought,  perhaps,  to  make  a  statement  which  may,  for  aught  I  know, 
have  some  bearing  on  the  case,  in  regard  to  a  subsequent  transac- 
tion. After  the  house  was  fully  organized,  I  was  appointed  one  of 
a  committee  to  draft  a  minute  in  regard  to  the  organization.  The 
history  of  this  transaction  I  will  give,  if  it  is  desired. 

The  counsel  for  the  respondents  said  they  did  not  desire  it. 

The  witness  urged  considerations  of  duty,  and  the  obligations  of 
his  oath,  which  he  "thought,  perhaps,  made  it  imperative"  on  him 
"  to  relate  the  transactions  referred  to." 

The  counsel  remonstrated,  and  the  witness  at  length  yielded  and 
retired  from  the  stand. 

Respondents'  counsel  then  proposed  to  read  from  the  docket  of 
the  Supreme  Court,  of  July  term,  1838,  [to  show  that  the  party  of 
the  relators  had  other  forms  of  redress  for  their  supposed  grievances, 
which,  he  urged,  they  ought  to  have  pursued  rather  than  this,]  the 
entries  of  suits  brought  by  Miles  P.  Squier,  Henry  Brown,  and 


232 

Phiiip  C.  Hay,  against  the  moderator,  clerks,  and  others  of  the  Old 
iSchool  Assennbly. 

The  opposite  Counsel  objected  to  this  testimony,  and  the  Court 
decided  that  it  could  not  affect  the  case. 

Mr.  IngersoU,  of  counsel  for  the  respondents,  then  said,  that  Dr. 
Elliott  (the  last  witness  on  the  stand)  still  felt  himself  bound,  by  the 
oath  he  had  taken,  to  state  some  particulars  to  which  he  alluded 
at  the  close  of  his  testimony,  but  which  he  was  at  the  time  prevent- 
ed, by  the  counsel,  from  stating.  Under  these  circumstances,  he 
did  not  think  that  they  had  a  right  to  close  the  mouth  of  Dr.  Elliott, 
and  on  his  behalf,  therefore,  he  requested  that  the  witness  might  have 
opportunity  to  proceed  with  his  statement. 

Dr.  E/lioit  then  resumed:  It  is  my  impression  that  there  were 
some  other  items  in  that  transaction,  besides  those  mentioned  on 
the  record.  A  committee  was  appointed  to  form  the  minute.  Af- 
terwards, Dr.  Nott  and  myself  were  added  to  that  committee,  and 
we  retired  to  make  up  our  report.  Dr.  Nott  took  a  pen,  and  told 
me  to  look  over  him  while  he  was  writing,  and  whenever  I  thought 
proper,  to  make  any  suggestion.  Accordingly  I  did  so,  and  sug- 
gested a  number  of  particulars;  but  Dr.  Nott  replied,  that  it  was 
not  important  to  mention  every  particular,  but  that  a  general  sketch, 
if  true,  was  all  that  was  necessary.  I  acquiesced,  though  I  thought 
that  several  of  my  suggestions  should  have  been  attended  to.  I 
proposed  to  say,  that  the  noise  had  been  disreputable,  but  Dr.  Nott 
observed,  that  the  less  said  about  that,  the  better.  There  is  nothing 
in  the  record  which  is  not  true.  I  am  willing  to  abide  by  that  as 
far  as  it  goes,  but  it  is  defective,  and  in  giving  evidence,  I  have 
thought  that  additional  particulars  ought  to  be  related. 

The  counsel  for  the  relators  here  withdrew  their  objection  to  the 
reading  of  the  entries  from  the  docket,  offered  by  the  respondents* 
counsel,  Mr.  Randall  remarking,  that  as  the  respondents  thought  it 
so  important  as  to  make  it  a  ground  of  exception  to  the  decision  of 
the  Court,  the  relators  did  not  regard  the  subject  of  any  conse- 
quence, and  as  it  would  occupy  but  a  few  moments  to  read  the 
record,  it  would,  perhaps,  be  best  to  hear  them  read.  The  Court 
consented,  and  the  record  was  read,  as  follows : 

Supreme  Court,  July  Tert?i,  1838. 


J.  Randall, 
Meredith, 
Bradford,  d.  b.  e. 
Kane,  d.  b.  e. 

25th  July,  1838. 
F.  W.  Uubbetl, 


56 


Miles  P.  Squire, 

vs. 
David  Elliott,  John 
M'Dowell,  John  M. 
Krebs,  William  S. 
Plumer  and  Robert 
J.  Breckinridge. 


fSummons  in  case 
exit  May  31, 1838. 

^  "Summoned." 

L 


/.  Randall, 
Meredith, 
Bradford,  d.  b.  e. 
Kane,  d.  b.  e. 

27th  July,  1838. 
F.  W.  Hubbell. 


57 


Henry  Brown 

vs. 
Same  Defendants. 


fSummons  in  case 
I  exit  May  31,  1838. 


"  Summoned. 


233 

J.  Randall.  Philip  C.  Hay,  ^Summons  in  case 

Meredith.  58  vs.  exit  May  31,  1838. 

Bradford,  d.  b.  e.  Same  Defendants.  J 

Kane,  d.  b.  e.  >  "  Summoned." 

27th  Julv,  1838. 
F.  W.  HubhelL 

In  connexion  with  the  remarks  of  counsel,  respecting  the  intro- 
duction of  these  entries  from  the  docket,  the  Court  intimated  that 
it  was  not  the  practice  to  note  decisions,  respecting  the  introduction 
of  testimony  or  collateral  questions  which  arose  on  the  trial,  as 
excepted  to,  unless  exception  were  actually  taken  at  the  time;  and 
that  otherwise  the  decision  was  regarded  as  acquiesced  in,  or  sub- 
mitted to. 

The  counsel  for  the  respondents  expressing  some  surprise  at  this, 
and  remarking  that,  owing  to  the  supposition  that  it  had  been  the 
practice  in  that  Court  to  note  every  decision  as  excepted  to,  as  was 
the  practice  in  some  other  courts,  they  had  omitted  to  request  the 
Court  to  note  any  exceptions  of  the  many  which  they  supposed  they 
should  take  in  a  certain  contingency. 

Judge  Rogers  remarked,  that  they  should  lose  no  advantage  from 
having  acted  under  this  misapprehension ;  but  might  consider  every 
point  on  which  he  had  decided  adverse  to  their  wishes,  as  now  raised 
and  decided.  Their  exceptions  should  be  noted  accordingly,  and 
after  this  explanation,  there  could  not  be  the  slightest  difficulty. 

Respondents  now  offered  to  introduce  a  series  of  witnesses,  to 
show,  that  they,  being  clergymen  within  the  bounds  of  the  four  dis- 
owned synods,  have,  according  to  the  provisions  of  the  act  of  1837, 
applied  to  neighbouring  presbyteries,  and  have  been  admitted  into 
them.  Mr.  Hubbell,  saying :  the  witnesses  are  here,  and  are  pre- 
pared to  testify  that  they  have  availed  themselves,  without  difficulty, 
of  the  provisions  of  that  act ;  but,  perhaps  this  testimony  falls  within 
your  Honour's  previous  exclusion. 

Judge  Rogers,  said:  I  do  not  see  the  pertinency  of  this  evidence. 
It  cannot  alter  the  character  of  the  original  acts. 

Mr.  Hubbell.  Will  your  Honour  then  please  to  note  an  exception. 
The  witnesses  offered,  are  Rev.  Varnum  Noyes,  John  V.  Hughes, 
Edwin  Bronson  and  William  H.  Snyder. 

Mr.  Boardman  re-cal!ed  by  the  respondents,  said :  After  the  mo- 
derator's call  for  commissions,  the  Rev.  Joshua  Moore  went  up  to 
the  clerks'  tabic  and  presented  a  commission.  I  know  only,  that 
this  was  subsequent  to  the  call  made  by  Dr.  Elliott.  It  was,  I 
think,  while  either  Mr.  Squier  or  Mr.  Cleaveland  was  on  the  floor, 
though  I  am  not  positive.  On  refieciion,  I  think  it  was  after  Dr. 
Mason  had  taken  his  seat.  I  cannot  speak  positively  as  to  the 
time. 

Rev.  Robert  J.  Breckinridge  called  by  the  respondents.  Interro- 
gated by  Mr.  Hubbell,  said :  I  was  a  commissioner  to  the  General 
Assembly  of  1838,  from  the  Presbytery  of  Baltimore.  I  attended 
the  organization  of  the  General  Assembly.  I  did  not  hear  any 
questions  put  by  Mr.  Cleaveland,  Dr.  Beman  and  Dr.  Fisher.  I 
did  not  know  what  the  motions  were,  and  would  not  have  voted  on 
them  if  I  had  known  what  they  were.     I  was  present  (in  the  Seventh 

20* 


234 

Presbyterian  Church)  from  the  time  when  Dr.  Palton  rose  till  the 
adjournment.  I  have  heard  various  statements  in  regard  to  the 
time  that  elapsed  from  Mr.  Cleaveland's  rising,  till  the  adjournment. 
I  can  only  say,  that  it  was  a  very  short,  and  a  very  confused  space 
of  time.  I  should  say,  that  from  the  time,  when  Mr.  Cleaveland 
rose,  until  the  confusion  subsided,  after  the  New  School  party  had 
left  the  house,  not  more  than  three  or  four  minutes  passed.  I  have 
been  in  poor  health,  which  has  prevented  my  attendance  here,  and 
do  not  know  who  have  been  sw'orn.  I,  therefore,  cannot  answer, 
whether  all  the  members  of  the  Assembly  of  1838,  who  are  present, 
have  been  examined.  Dr.  Alexander  W.  Mitchell  was  a  member, 
and  I  think  I  heard  him  say,  that  he  had  not  been  sv^orn.  I  heard 
a  part  of  Mr.  Cleaveland's  paper.  My  position  was  as  one  or  two 
gentlemen  have  described  it.  I  was  at  some  distance  from  Mr. 
Cleaveland,  I  heard  nothing  distinctly,  after  he  moved  that  Dr. 
Beman  should  take  the  chair.  I  recollect  that  Professor  Maclean 
was  a  commissioner,  and  he  has  not  been  sworn.  I  did  not  hear 
Mr.  Cleaveland  put  any  other  question  than  that  on  the  nomination 
of  Dr.  Beman,  and  if  I  had  been  disposed,  I  could  not  have  voted 
intelligently  upon  any  motion  but  that.  Whether  this  motion  was 
reversed,  or  not,  I  don't  know.  I  do  not  know  whether  any  of  the 
other  questions  were  reversed  :  I  heard  no  vote  except  the  aye.  To 
the  best  of  my  recollection,  I  heard  no  negative  vote  on  any  ques- 
tion. It  is  probable  that  my  perceptions  were  influenced  by  the 
state  of  my  own  mind. 

Cross-examination.  Interrogated  by  Mr.  Randall,  the  witness 
said:  I  probably  did  not  give  as  much  attention  to  the  proceedings, 
as  I  should  if  I  had  viewed  them  in  a  diiferent  light. 

Dr.  Alexander  TV.  Mitchell,  called  by  the  respondents.  I  was  a 
commissioner  to  the  General  Assembly  in  1838.  My  position  was 
nearly  opposite  to  the  east  door,  on  the  west  side  of  the  east  aisle. 
Mr.  Cleaveland  was  in  a  pew  opening  on  the  east  side  of  the  mid- 
dle aisle,  on  a  line  with  that  in  the  rear  of  the  one  in  which  I  sat ; 
my  seat  was  therefore  one  pew  in  advance  of  the  line  of  his.  I 
was  about  half  way  up  from  the  door  of  my  pew,  and  he  about 
two-thirds  of  the  way  up  his.  He  rose,  and  made  some  observa- 
tions, but  whether  speaking  or  reading  from  a  paper  I  do  not  know. 
At  this  moment  my  attention  was  diverted  to  a  gentleman  in  the 
pew  before  me.  When  I  turned  again  Mr.  Cleaveland's  back  was 
towards  me.  That  which  diverted  my  attention  was,  a  gentleman, 
in  the  pew  immediately  in  front  of  me,  standing  on  the  seat.  I 
asked  him  if  he  was  a  member,  and  he  said  he  was.  [The  witness 
here  asked  if  he  should  proceed,  and  objection  was  made  to  his  re- 
lating individual  conversation.]  When  Mr.  Cleaveland  finished, 
he  was  facing  the  north-west.  He  moved  that  Dr.  Beman  should 
take  the  chair  or  be  moderator.  I  don't  know  which.  There  was 
a  loud  response  of  "aye."  The  gentleman  on  the  seat  in  front  of 
me  answered  in  a  very  loud  voice.  I  don't  believe  that  the  nega- 
tive of  the  question  was  put.  I  did  not  hear  it  called  for.  I  heard 
no  negative  votes,  but  there  was  a  great  deal  of  noise  and  confusion 
in  that  part  of  the  house.     I  did  not  vote  on  Mr.  Cleaveland's  mo- 


235 

tion.  I  did  not  consider  that  I  iiad  either  part  or  lot  in  the  matter. 
I  regarded  it  as  disorderly.  I  did  not  consider  anything  to  be 
before  the  house  at  that  time.  The  moderator  cried  "  Order!"  and 
a  great  many  in  the  pew  with  me  called  to  order.  I  did  not  my- 
self call.  After  the  vote  of  aye,  Mr.  Cleaveland  made  another 
motion  for  the  appointment  of  temporary  clerks.  I  understood  him 
to  nominate  Mr.  Gilbert,  whom  I  had  seen  before,  and  Dr.  Mason, 
of  whom,  until  that  day,  I  had  no  knowledge.  I  did  not  hear  the 
question  reversed.  I  do  not  believe  that  it  was  reversed.  I  think 
1  should  have  heard  if  he  had  reversed  the  question,  as  I  was  con- 
tiguous to  the  place.  Afterwards  there  was  an  '*aye,"  in  about 
the  same  tone  as  before.  The  man  on  the  seat  in  front  of  me 
yelled  to  it.  His  "aye"  was  not  given  in  the  manner  usual  in  de- 
liberative assemblies.  I  should  say  that  it  was  more  like  the  yell  of  an 
Indian,  than  of  a  white  man.  The  next  thing  I  observed  was,  that 
Dr.  Beman  moved  out  into  the  aisle.  There  were  a  number  of 
others  moved  into  the  aisle  at  the  same  time  he  did.  Others  rose 
on  their  feet  and  remained,  some  standing  on  the  floor  and  some 
on  the  seats.  I  then  sat  down.  I  heard  the  ayes  called  two  or 
three  times.  I  remember  their  going  out  of  the  house.  Immedi- 
ately after  they  left  the  house  some  person  announced  at  the  doors 
of  the  church,  in  a  very  loud  voice,  that  the  General  Assembly  of 
the  Presbyterian  Church  had  adjourned  to  meet  forthwith  in  the 
lecture  room  of  the  First  Presbyterian  Church.  It  was  not  the  lit- 
tle man  who  yelled  like  an  Indian.  This  proclamation  was  repeated 
two  or  three  times  to  the  best  of  my  recollection.  The  first  that  I 
knew  of  Dr.  Fisher's  appointment  was  either  that  afternoon  or  the 
next  morning.  The  whole  of  these  actions  occupied  but  a  short 
space  of  time.     I  suppose  five  minutes  or  thereabout. 

Mr.  Preston. — Did  you  hear  any  response  from  the  gallery. 
Witness. — I  can't  say  that  I  did.     There  was  a  confused  noise  in 
all  that  part  of  the  church. 

Respondents  called  Mr.  Alexander  Syinington.  Interrogated  by 
Mr.  Hubbell,  the  witness  said:  I  was  a  delegate  to  the  General  As- 
sembly of  1838.  I  was  a  lay  delegate.  I  attended  at  the  organi- 
zation. I  sat  on  the  west  side  of  the  house,  nearly  opposite  to  where 
Mr.  Cleaveland  was.  I  heard  him,  or  rather  I  saw  him,  when  he 
rose.  I  heard  him  commence  reading  or  speaking.  I  heard  a 
good  many  words  at  the  time,  but  not  having  charged  my  memory 
with  them,  I  am  unable  to  give  an  explicit  and  particular  account 
of  all  that  was  said.  I  heard  him  say  "  Counsel  learned  in  the  law." 
I  also  heard  the  word  "discourteous."  I  heard  him  put  the  ques- 
tion as  to  the  appointment  of  Dr.  Beman  as  moderator.  I  heard 
the  vote  in  the  affirmative  on  that  question.  I  can't  say  that  the 
question  was  not  reversed;  all  that  I  can  say  is,  that  I  did  not  hear 
it  reversed.  I  am  unable  to  say  now  whether  I  heard  any  negative 
votes.  I  did  not  vote.  I  did  not  vote  on  any  of  the  questions  put 
by  Mr.  Cleaveland,  or  subsequently  put  by  Dr.  Beman  or  Dr.  Fisher. 
I  did  not  hear  the  motion  for  Dr.  Fisher's  appointment  at  all.  I 
did  not  know  of  it  till  the  afternoon  session ;  but  think  I  learned  it 
during  that  day,  some  time  in  the  day;  I  can't  say  when. 


236 

Respondents  next  called  Mr.  William  Hamilton.  Interrogated  by 
Mr.  Hubbell,  the  witness  said:  I  attended  at  the  time  of  the  organi- 
zation of  the  General  Assembly  of  1838,  on  the  17th  day  of  May 
last,  at  the  Seventh  Presbyterian  Church,  in  Ranstead  Court.  I 
saw  a  gentleman,  whom  I  afterwards  understood  was  Mr.  Cleave- 
land.  I  saw  him  when  he  first  rose ;  he  appeared  to  be  reading  a 
paper  which  he  held  in  his  hand ;  at  any  rate,  he  appeared  to  be 
looking  at  it.  I  did  not  hear  a  motion  made.  I  was  on  the  east 
side  of  the  church,  a  little  to  the  north  of  the  east  door.  I  could 
not  hear  what  Mr.  Cleaveland  read  or  said.  There  was  only  one 
gentleman  whom  I  knew  in  my  vicinity,  though  there  were  numerous 
persons  there  around  me  where  I  sat.  I  heard  a  cry  of  "  aye"  after 
he  had  read  a  part  of  the  paper.  Whilst  he  was  reading,  he  turned 
round  from  the  moderator.  I  could  not  see  nor  hear  him  distinctly. 
The  response  of  "  aye"  was  very  loud,  and  one  voice  much  louder 
than  any  of  the  rest.  The  person  whom  I  knew,  and  several 
others  in  the  pew  in  which  I  sat,  and  in  that  immediately  before 
me,  voted  "  aye."  The  person  alluded  to,  was  the  only  one 
whom  1  knew  in  the  vicinity  where  I  was.  It  was  the  Rev. 
Mr.  Duffield,  formerly  of  Philadelphia.  When  he  said  "  aye,"  his 
face  was  turned  toward  Mr.  Cleaveland,  so  that  I  could  see  the  side 
of  his  face.  He  was  sitting  before  me  at  the  time.  Mr.  Duffield 
then  struck  his  cane  down  on  the  seat  quite  violently,  and  said  to 
another  gentleman  sitting  by  him,  that  "  It  was  done  according  to 
law,  as  slick  as  it  could  be."  He  repeated  this  three  times  to  those 
around  him,  and  seemed  highly  pleased.  Afterwards  they  moved, 
and  went  toward  the  north  door  of  the  house,  but  I  continued  to 
sit.  I  heard  them  cry  "  aye"  another  time,  but  do  not  recollect  at 
present  what  it  was  about.  After  a  great  part  were  out  of  the 
house,  I  heard  one  gentleman  cry  in  a  very  loud  voice,  that  the 
General  Assembly  hajJ  adjourned  to  meet  forthwith  in  Mr.  Barnes' 
church.  I  am  not  certain  whether  he  said  Mr.  Barnes'  church,  or 
the  First  Presbyterian  Church.  His  proclamation  was  thrice  re- 
peated at  the  other  doors.  I  do  not  know  who  made  the  proclama- 
tion the  first  and  second  times,  but  it  was  repeated  the  third  time 
at  the  east  door,  directly  before  me,  by  Mr.  Eliakim  Phelps. 

Cross-examined  by  Mr.  Randall. — Were  you  a  commissioner? 

Witness. — I  was  not  a  commissioner:  I  was  a  spectator. 

Mr.  Randall. — Did  you  know  the  Rev.  George  Duffield? 

Witness. — I  had  seen  him  sitting  in  the  General  Assembly  of  1837, 
amongst  the  members. 

Mr.  Randall. — Did  he  take  part  in  the  proceedings  in  1837. 

Witness. — I  don't  know. 

Mj:  Randall — How  often  have  you  ever  seen  Mr.  Duffield  in  the 
course  of  your  life? 

Witness. — I  have  not  seen  him  more  than/ow?-  or  five  times. 

Mr.  Randall. — Did  you  ever  speak  to  him? 

Witness. — I  never  did. 

Mr.  Randall. — Are  you  certain  that  the  person  you  described 
was  Mr.  Duffield? 

Witness. — I  am  confident  that  it  was. 


237 

Mr.  Randall. — Are  you  certain  that  Mr.  Duffield  struck  on  the 
seat  with  his  cane? 

Witness. — I  said  that  he  had  a  cane,  and  struck  on  the  seat  seve- 
ral times  with  it. 

J\]r.  Randall. — Did  he  ever  carry  a  cane  before? 

fViiness. — I  don't  know. 

Mr.  Randall. — Did  you  ever  see  him  have  a  cane  at  any  previous 
time? 

Witness. — I  don't  recollect  that  I  did. 

Mr.  Randall. — Do  you  know  that  Mr.  Duffield  is  in  this  city  at 
present. 

Witness. — I  do  not. 

Mr.  Randall. — Do  you  not  know  that  he  is  at  present  at  Detroit, 
in  the  state  of  Michigan  ? 

Witness. — I  am  ignorant  as  to  that. 

Mr.  Randall. — Had  Mr.  Duffield  any  pastoral  charge  whilst  he 
resided  in  this  city  ? 

Witness. — I  am  not  certain,  but  I  meant  to  say  that  he  had  no 
pastoral  charge  here  at  this  time.  Such  is  my  recollection,  though 
I  may  be  mistaken,  as  to  that  point. 

Respondents  called  Mr.  Joseph  B.  Mitchell.  Interrogated  by  Mr. 
Hubbell,  the  witness  said:  I  was  present  at  the  organization  of  the 
General  Assembly  of  1838.  I  am  cashier  of  the  Mechanics'  Bank, 
in  this  city.  I  was  first  located  opposite  to  the  south-east  door  of 
the  house,  but  afterward  stood  in  the  aisle,  except  for  a  few  minutes, 
when  I  went  round  to  the  clerks'  table.  Mr.  Cleaveland's  position 
was  three  or  four  pews  to  the  north  of  me,  perhaps  ten  or  twelve 
feet  distant.  I  saw  Mr.  Cleaveland  rise.  He  was  apparently  read- 
ing a  paper.  I  did  not  hear  the  language  it  contained,  though  I 
understood  his  object.  He  was  at  first  with  his  side  towards  me, 
and  his  face  to  the  moderator,  but  I  think  that  he  afterwards  turned. 
Persons  rising  between  us,  in  the  confusion  I  lost  sight  of  him,  and 
do  not  recollect  seeing  him  at  the  conclusion  of  his  exordium.  I 
heard  something,  which  I  understood  to  be  a  motion,  but  I  did  not 
hear  it  distinctly.  I  think  Dr.  Beman's  name  was  mentioned. 
Whether  the  motion  was  made  by  Mr.  Cleaveland  or  not,  I  can't 
say.  I  took  it  for  granted  that  it  was  for  moderator  or  chairman, 
that  his  name  was  mentioned.  I  immediately  heard  a  response  of 
"aye,"  in  a  very  loud  tone.  The  noise  in  the  house  increased.  I 
did  not  hear  the  question  reversed.  I  am  certain  that  there  were  no 
negative  votes  in  the  part  of  the  house  where  I  was.  I  did  not 
hear  any  negative  votes.  There  might  have  been  some  in  the 
north-west  part  of  the  house,  but  there  were  none  in  the  region  that 
I  occupied.  I  did  not  hear  any.  I  heard  a  number  of  persons  say 
"  aye."  I  did  not  hear  Dr.  Fisher's  name  mentioned.  I  think  I 
heard  that  he  had  been  elected  moderator  on  the  succeeding  day. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said  :  The  last  of  my  brother's  official  acts  was  with  the  New  School 
When  I  last  saw  him,  he  sympathized  with  that  school,  and  was 
said  to  be  the  author  of  a  protest,  in  the  Synod  of  Virginia,  against 


238 

the  proceedings  of  the  other  party-     I  don't  Hke  party  names,  but 
I  am  ranked  on  the  Old  School  side. 

Rev.  S.  Beach  Jones,  called  by  the  respondents,  interrogated  by 
Mr.  Hubhell,  said:   I  attended  the  General  Assembly  of  1838  as  a 
delegate  from  the  Presbytery  of  Mississippi.     I  was  present  at  the 
organization  of  said  Assembly,  in  Ranstead  court.     I  was  in  the 
fourth  or  fifth  pew  from  the  moderator,  on  the  west  side  of  the 
middle  aisle.     I  was  about  twelve  or  fifteen  feet  from  where  Mr. 
Cleaveland  was  seated.  His  position  was  diagonally  across  the  house 
from  me,  and  in  the  sixth  or  seventh  pew  from  where  I  sat.    I  saw 
him  reading  a  paper.    Although  I  was  so  near  to  him,  I  did  not  hear 
distinctly  what  he  read.     I  heard  a  motion  from  him :  it  was  that 
Dr.  Beman  be   moderator  or  chairman.     There  was  rather  a  tu- 
multuous cry  of  "  ayes"  in  answer.     I  heard  no  reversal  of  the 
question,  though  I  was  within  a  short  distance  of  him.     I  don't  think 
that  I  heard  any  "  noes."     There  were  certainly  none  in  my  region, 
and  I  considered  it  in  the  body  of  the  house.     He  then  made  a  mo- 
tion for  the  appointment  of  clerks.     I  do  not  know  that  I  heard  the 
names  of  the  gentlemen.     I  presume  I  did  hear  their  names,  but  I 
should  not  like  to  say  positively.     They  were  strangers  to  me.    The 
party  or  body  of  men  who  took  part  in  these  proceedings,  particu- 
larly the  leaders,  seemed  to  be  congregated  near  the  middle  aisle, 
around  where  Mr.  Cleaveland  was.     There  seemed  to  be  a  nucleus 
in  the  aisle,  around  which  they  congregated;  but  of  this  I  cannot 
speak  positively.     I   heard  nothing  distinctly  afterwards,  except 
*'  ayes,"  and  an  announcement  that  the  General  Assembly  had  ad- 
journed to  meet  immediately  in  the  First  Presbyterian  Church,  on 
Washington  street.     What  it  was  that  passed,  I  did  not  certainly 
know,  but  it  was  a  scene  of  much  excitement  and  tumult.     I  cannot 
say  how  long  this  scene  continued,  but  it  was  of  very  short  dura- 
tion.    I  did  not  hear  Dr.  Fisher  nominated  as  moderatoi'.     I  knew 
nothing  of  it  at  the  time.     J  first  heard  that  Dr.  Fisher  was  elected 
moderator,  either  that  afternoon,  as  I  was  returning  to  the  General 
Assembly,  or  the  next  day:  I  think  it  was  that  afternoon.     J  did  not 
vote.     I  had  no  opportunity  to  vote  as  I  should  wish. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said:  I  still  belong  to  the  Presbytery  of  Mississippi,  unless  I  have 
been  recently  dismissed,  as  I  requested  to  be.  I  now  reside  at 
Bridgeton,  in  New  Jersey,  ministering  to  a  congregation  belonging 
to  this  presbytery,  to  which  I  requested  to  be  dismissed.  I  pre- 
sume that  I  am  now  dismissed  from  the  Presbytery  of  Mississippi, 
to  that  of  Philadelphia,  but  have  no  certain  knowledge  that  such  is 
the  fact. 

Mr.  Samuel  Agnew,  called  by  the  respondents,  interrogated  by 
Ml'.  Hubbell,  said:  I  was  not  in  commission  to  the  General  Assem- 
bly of  1838,  but  attended  its  organization.  I  was  situated  near  the 
south-west  door.  I  saw  Mr.  Cleaveland  rise  with  a  paper  in  his 
hand.  He  seemed  to  read  it,  amidst  a  great  deal  of  confusion.  I 
did  not  hear  it;  the  confusion  was  so  great,  that  it  was  impossible 
for  me  to  hear  it.  I  heard  him  make  a  motion  that  Dr.  Beman  take 
the  chair,  or  preside.     I  heard  him  put  the  question  in  the  affirma- 


239 

tive  on  this  motion.  I  did  not  hear  him  reverse  it.  My  impression 
is,  that  it  was  not  reversed.  The  succeeding  motion  was  so  quickly- 
made,  and  the  question  put  thereon,  that  there  could  not  have  been 
time  for  a  reversal.  There  was,  at  that  time,  much  confusion  and 
considerable  noise.  After  this  a  number  of  motions  were  put,  or 
at  least  "ayes"  taken.  Many  persons  were  standing  in  the  church, 
some  on  the  floor,  and  some  on  the  seats  in  the  pews.  What  fol- 
lowed I  did  not  hear  distinctly,  owing  to  the  tumult  and  confusion. 
I  did  not  hear  the  motion  made  to  put  Dr.  Fisher  into  the  chair. 
I  heard  the  proclamation  of  an  adjournment  made  at  the  doors  of  the 
house.  I  heard  some  votes  from  the  gallery.  I  think  the  whole 
proceedings  occupied  not  more  than  five  or  six  minutes,  though  it 
might  have  been  ten  minutes  or  more.  1  can't  tell  how  lono-  the 
proceedings  occupied  with  any  precision. 

Cross-examination. — To  what  church  do  you  belong? 
Witness. — I  am  a  member  of  Dr.  M'Dowell's  church,  generally 
called  the  Central  Church,  in  this  city. 

Respondents  called  Mr.  Edward  C.  JYo7-ris.  Interrogated  by  Mr. 
Hubhell,  the  witness  said :  I  attended  the  organization  of  the  Gene- 
ral Assembly  of  1838,  in  Ranstead  court.  1  took  my  station  in  the 
south-west  door  of  the  church,  near  to  the  pulpit;  I  mean  the  door 
next  to  the  grave  yard.  I  saw  Mr.  Cleaveland  rise.  He  held  a 
paper  in  his  hand,  and  appeared  as  if  he  was  reading  from  the  paper. 
He  read  in  a  very  loud  voice.  His  voice  was  very  loud,  clear  and 
distinct.  I  could  distinctly  hear  every  thing  which  he  read,  but  do 
not  now  remember  what  it  was.  When  he  finished  reading  the 
paper,  as  I  presumed,  he  nominated  Dr.  Beman  to  act  as  chairman. 
I  heard  a  very  loud  afl[irmative ;  I  should  think  from  the  galleries 
as  well  as  the  lower  part  of  the  house.  I  do  not  recollect  hearing 
the  question  reversed,  or  any  negative  votes.  Dr.  Beman  rose,  and 
took  his  station  in  the  middle  aisle.  Mr.  Cleaveland's  face  was  to- 
ward the  moderator.  The  next  thing  that  I  heard,  was  two  persons 
nominated  as  clerks,  but  by  whom  they  were  nominated,  I  did  not 
know.  The  next  thing  that  I  heard  distinctly,  was  the  motion  that 
the  General  Assembly  do  now  adjourn,  to  meet  again  in  the  First 
Presbyterian  Church,  on  Washington  Square.  Then  they  rose  up 
in  a  body  in  the  rear  of  the  building,  and,  together  with  many  from 
the  galleries,  went  out  of  the  house.  There  was  then  a  proclama- 
tion made  and  repeated  at  the  several  doors  of  the  church,  in  a  loud 
voice,  that  the  General  Assembly  of  the  Presbyterian  Church  (in 
the  United  States  of  America,  I  think,  was  added)  had  adjourned  to 
the  First  Presbyterian  Church. 

Mr.  Hubhell. — How  long  time  did  these  proceedings  occupy? 
Witness. — I  am  not  positive,  but  I  think  that  they  did  not  occupy 
more  than  twenty  or  twenty-five  minutes. 

Cross-examination. — I  was  standing  part  of  the  time  between  the 
stove  and  the  door,  and  partly  in  the  door  among  those  most  re- 
mote from  Mr.  Cleaveland  of  any  persons  in  the  house.  There 
were  some  outside.  I  was  further  from  Mr.  Cleaveland  than  most 
of  the  members  of  the  General  Assembly. 


240 

Mr.  Meredith. — Did  you  hear  the  motions  at  the  distance  you 
■were  from  him  1 

Witness. — The  motions  which  I  heard  were  in  a  very  loud,  clear, 
and  distinct  voice.     They  could  easily  be  heard  where  I  was. 

Mr.  Meredith. — Were  you  a  member  of  the  General  Assembly? 

Witness. — I  was  not  a  member;  I  was  there  as  a  spectator. 

Mr.  Meredith. — Are  you  a  member  of  the  Presbyterian  Church  ? 

Witness. — I  am  not  a  Presbyterian;  J  am  an  Episcopalian. 

Mr.  Meredith. — Did  you  feel  a  particular  interest  in  the  pro- 
ceedings ? 

Witness. — I  had  no  particular  interest  in  the  proceedings.  I 
went  there  merely  out  of  curiosity  to  see  what  they  were  about, 
nnd  hear  what  was  going  on. 

Professor  John  M'Lean  called  by  respondents,  interrogated  by 
Mr.  Hubbell,  said:  I  was  a  commissioner  to  the  General  Assembly 
of  1838. 

Mr.  Hubbell. — Did  you  hear  Mr.  Cleaveland's  motion  ? 

Witness. — I  did  not  hear  it  distinctly.  I  heard  a  motion  some- 
what to  this  effect:  "I  move  that  Dr.  B ,"  I  thought  at  the  time 

that  it  was  Dr.  Beecher,  but  heard  afterwards  that  it  was  Dr.  Be- 
man.  This  was  all  that  I  heard  of  the  motion.  I  heard  the  "  aye" 
very  distinctly.  I  did  not  hear  the  question  reversed.  I  did  not 
hear  any  negative  votes.  1  did  not  vote  myself  I  had  no  oppor- 
tunity if  I  had  been  disposed  to  vote.  I  am  perfectly  willing  to  say 
what  I  would  have  done.  I  would  not  have  voted  if  I  had  had  the  op- 
portunity. I  have  no  distinct  recollection  of  clerks  being  nomi- 
nated. Whether  I  heard  it  or  not,  I  can't  say  positively.  Sub- 
sequently, I  heard  nothing.  Till  the  afternoon,  or  next  morning, 
I  supposed  that  it  was  Dr.  Beecher  who  was  called  to  the  chair. 

Cross-examination,  by  Mr.  Randall. — Did  you  not,  in  a  discussion 
which  afterwards  took  place  in  your  Assembly,  in  relation  to  a  re- 
port of  a  committee,  oppose  the  adoption  of  that  report  because  it 
contained  the  words  "  tumult  and  violence''''  as  descriptive  of  the 
proceedings  of  the  New^  School  party  'I 

Witness. — I  remember  opposing  the  adoption  of  the  words 
"  tumult  and  violence"  which  were  in  the  report  alluded  to.  How- 
ever, I  can't  say  as  to  the  word  "  tumult."  I  recollect  distinctly 
opposing  the  word  "  violence,"  apprehending  it  to  be  of  ambiguous 
import,  that  some  might  understand  by  it,  that  there  had  been  per- 
sonal violence,  something  like  an  assault  and  battery,  and  farther, 
because  I  thought  we  ought  to  state  the  simple  facts,  without  cha- 
racterizing them. 

Mr.  Randall. — Did  you  not  say,  in  the  course  of  that  debate,  that 
there  had  been  as  little  disturbance  amongst  the  New  School  mem- 
bers as  there  could  have  been  in  such  a  case,  or  under  such  cir- 
cumstances ? 

Witness. — I  used  words  of  somewhat  analogous  import.  I  said 
it  was  true  there  had  been  violence,  in  the  sense  intended,  but  no 
violence,  in  the  sense  in  which  the  word  might  be  understood. 
1  made  a  remark  also  to  this  effect:  that  there  had  been  as  little 
disturbance  by  the  members  of  the  New  School  party,  as  had  been 


241 

possible,  in  that  state  of  things.  The  word  tumult  was  not  re- 
tained, by  the  casting  vote  of  the  moderator  :  my  impression  is,  that 
I  was  in  a  very  small  minorit}'.  My  object  was  to  have  a  simple 
narrative  of  what  had  occurred,  without  any  comment.  I  respected 
the  motives  of  my  brethren  of  the  New  ISchool.  I  thought  that  the 
tumult  could  not  be  charged  on  them,  though  they  were  the  occa- 
sion of  it. 

Re-examined  by  Mr.  IngersoU,  witness  said :  There  were  loud  ex- 
clamations of  "  aye,"  and  there  was  great  excitement.  My  remark 
was,  that  the  disturbance  was  not  greater  than  was  natural  under 
such  circumstances.  I  thought  the  proceedings  disorderly,  of 
course  ;  I  have  never  thought  otherwise.  It  was  a  violation  of  the 
rules  of  order.  My  object  was,  to  defend  the  motives  of  my  brethren. 
Towards  the  conclusion  of  the  scene,  there  was  clapping  and  some 
hissing. 

Bij  Mr.  Randall. — I  did  not  know  any  of  the  individuals  who 
clapped  or  hissed,  but  supposed  the  clapping  was  in  approbation, 
and  the  hissing  in  disapprobation. 

Mr.  Randall. — Is  it  not  more  probable  that  the  opponents  of  the 
New  School  men  would  make  a  noise  to  interrupt  them,  than  that 
they  should  interrupt  themselves? 

Witness. — As  an  abstract  proposition  it  may  be  so. 

By  Mr.  Huhbell. — I  am  not  aware  that  there  was  disorder  among 
the  Old  School. 

By  Mr.  Randall. —  I  think  some  of  the  commissioners  were  dis- 
orderly, but  I  saw  no  clapping  or  hissing  from  any  member  of  the 
Assembly.  There  was  certainly  disorder.  I  supposed  it  was  a 
disorder  to  form  an  ex-parte  organization.  The  voices  of  the  New 
School,  in  voting,  were  altogether  above  the  pitch  necessary  to 
being  heard. 

Mr.  Meredith. — Was  it  not  necessary  to  speak  loud  in  order  to 
be  heard? 

Witness. — It  was  a  perfect  scene  of  confusion.  I  suppose  it  was 
necessary  to  speak  loud,  in  proportion  to  the  noise,  in  order  to  be 
heard.     The  voice  naturally  rises  in  loudness  with  excitement. 

By  Mr.  Preston. — I  am  confident  that  Mr.  Duffield  was  not  a 
member  of  the  Assembly. 

Mr.  Randall. — He  was  not:  the  record  shows  that. 

Mr.  Charles  F.  Worrall,  called  by  the  respondents,  interrogated 
by  Mr.  Hubhell,  said :  I  was  present  as  a  spectator  at  the  organiza- 
tion of  the  General  Assembly  of  1838.  I  went  into  the  house  about 
nine  o'clock  in  the  morning.  I  heard  Mr.  Cleaveland  make  his 
motion.  I  was  in  the  east  gallery,  in  the  front  pew  of  those  that 
ascend  from  the  pulpit.  Mr.  Cleaveland  rose,  having  a  paper  in  his 
hand,  after  having  consulted  with  two  or  three  persons  near  him. 
He  commenced  reading,  or  looked  at  the  paper  as  if  he  were  read- 
ing. After  he  began,  he  turned  round  with  his  face  toward  the 
west  side  of  the  church.  I  could  have  heard  nearly  all  that  he  said, 
but  my  attention  was  distracted  by  the  confusion  in  the  house,  so 
that  I  cannot  tell  exactly  what  he  said.  His  preamble  was  very 
similar,  I  think,  to  that  of  Dr.  Patton.  During  the  reading,  he 
21 


242 

turned  round,  till  the  side  of  his  face  was  towards  me  and  his  back 
almost  to  Dr.  Elliott.  He  appeared  very  much  agitated.  Some  of 
his  words  were  those  so  often  proved  already,  that  counsel  learned 
in  the  law  had  informed  them,  that  it  was  necessary,  that  morning, 
to  organize  themselves,  and  that  they  would  accordmgly  do  it  in 
the  fewest  words  and  the  shortest  time  practicable.  He  was  then 
facing  the  north-west  corner  of  the  house.  In  the  same  breath,  Mr. 
Cleaveland  moved  that  Dr.  Beman  should  be  appointed  to  the  chair, 
and  put  the  motion.  By  this  time  all  north  of  Mr.  Cleaveland  arose. 
Some  were  standing  on  the  seats,  and  some  on  the  tops  of  the  pews. 
Immediately  I  heard  a  general  yell  of  "aye!"  and  there  was  one 
*' aye  "louder  than  the  rest.  It  was  Dr.  Beecher,  of  Cincinnati, 
Ohio,  who  made  the  loud  yell.  The  side  of  his  face  was  towards 
me,  and  so  far  as  I  could  tell,  it  was  Dr.  Beecher.  There  was  a 
good  deal  of  clapping  and  hissing  about  this  time.  There  was  also 
some  votes  in  the  gallery  on  both  sides  of  the  house.  The  motion 
was  not  put  in  the  negative,  and  was  not  reversed.  The  motion 
for  the  appointment  of  clerks  was  put  without  a  negative.  Dr.  Be- 
man then  requested  that  ihey  should  retire  to  the  back  part  of  the 
house.  He  stepped  out  of  the  pew  into  the  aisle,  but  at  the  same 
time  other  persons  rushed  out  of  the  pews  on  both  sides.  He  then 
called  for  motions.  A  motion  was  made  by  some  one  of  them,  I 
don't  know  who,  that  Dr.  Fisher  be  moderator ;  and  Dr.  Beman  put 
the  question,  without  reversing  it  that  I  heard.  Dr.  Mason  and  Mr. 
Gilbert  were  then  nominated  as  clerks,  and  without  loss  of  time  the 
question  was  put,  without  reversing  it  so  far  as  I  heard.  It  was 
then  moved  that  they  adjourn  to  meet  again  at  the  First  Presbyte- 
rian Church.  The  motion  was  put.  I  heard  no  negative  on  this 
motion,  though  there  were  a  few  "noes"  simultaneously  with  the 
"  ayes."  It  was  then  announced  at  the  several  doors  of  the  church 
successively,  that  the  General  Assembly  of  the  Presbyterian  Church 
in  the  United  States  of  America  had  adjourned,  to  meet  again  im- 
mediately, in  the  lecture-room  of  the  First  Presbyterian  Church ; 
and  the  whole  body,  and  a  part  of  the  audience,  about  one-third, 
went  out  as  rapidly  as  possible,  at  the  north  door  of  the  church.  It 
was  Dr.  Edward  Beecher  who  made  this  proclamation.  The  pro- 
clamation was  made  in  a  loud  voice,  and  was,  that  the  delegates 
should  attend  at  the  First  Presbyterian  Church,  and  there  present 
their  commissions.  The  proclamation  was  repeated  two  or  three 
times.  The  appointment  of  a  Committee  of  Commissions,  moved 
some  time  before,  was  now  under  consideration,  and  Mr.  Breckin- 
ridge on  the  floor. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said :  I  live  at  Princeton,  in  New  Jersey.  I  am  a  native  of  Lan- 
caster county,  in  this  state ;  am  now  a  student  of  theology  in  the 
seminary  at  Princeton.  Dr.  Beecher,  at  the  time  he  made  the  loud 
cry  of  "  aye,"  was  standing  on  the  seat,  partly  on  the  back,  of  the 
same  pew  in  which  Mr.  Cleaveland  was,  or  of  one  near  it.  I  was 
almost  right  over  his  head  ;  have  never  lived  in  the  same  town  with 
Dr.  Beecher;  had  seen  him  and  heard  him  make  several  addresses 
in  the  meetings  at  the  First  Church.     I  had  never  seen  him  be- 


243 

fore  that  visit  to  Philadelphia,  and  have  not  since.  I  feel  confident 
that  it  was  Dr.  Beecher,  but  possibly  might  be  mistaken.  I  am  as 
confident  of  its  being  he  as  I  could  be,  after  having  seen  him  only 
a  few  times.  I  know,  by  report,  that  Dr.  Beecher  is  now  in  the 
West,  that  he  is  not  here.  I  should  think  the  person  I  took  for  him 
was  about  sixty  years  of  age.     Dr.  Beecher's  manner  is  rather  mild. 

Mr.  Ingersoll,  for  the  respondents,  called  the  attention  of  the  Court 
to  certain  testimony  (the  reporter  did  not  understand  what  it  was) 
which  had  been  rejected,  and  which  he  still  desired  to  introduce. 

Mr.  Randall  said:  Reduce  your  proposition  to  writing,  and  per- 
haps we  shall  not  object  to  it. 

After  a  short  colloquy  between  the  counsel,  the  subject  was 
waived. 

Mr.  Randall. — As  the  counsel  on  the  other  side  have  taken  so 
great  pains  to  throw  a  doubt  over  the  subject  of  a  reversal  of  the 
questions  put  by  Mr.  Cleaveland  and  others,  in  the  organization  of 
the  Assembly,  we  shall  be  under  the  necessity  of  offering  some  re- 
butting evidence.  No  point,  we  believe,  is  capable  of  being  more 
firmly  established  by  human  testimony  than  that. 

But  first  we  must  have  Mr.  Hamilton  to  explain  his  testimony  in 
regard  to  Mr.  Duffield. 

Mr.  Randall  then  called  Mr.  Hamilton,  and  being  informed  that 
he  had  left  the  Court,  said  he  must  then  require  him  at  the  hands 
of  the  opposite  counsel  in  the  morning. 

Mr.  Meredith. — It  is  of  no  consequence  at  all. 

M?'.  Hubbell,  on  behalf  of  the  defendants'  counsel,  here  intimated 
that  they  did  not  know  of  any  further  testimony  to  be  introduced 
by  them,  yet  as  it  was  now  late,  he  was  desirous  not  to  close  until 
next  morning.  He  wished  the  case  to  be  left  open,  that  they  might 
have  the  opportunity  of  offering  such  documentary  testimony  as 
they  might  have  omitted,  though  he  did  not  know  of  any.  He  said 
they  did  not  intend  to  offer  any  other  oral  testimony. 

The  Judge  assented,  and  the  Court  adjourned. 

Friday  morning,  March  15. 
Rev.  John  M'Dowell,  D.  D.,  re-called  by  the  respondents,  said: 
On  the  evening  of  the  16th  of  May,  and  during  the  morning  of  the 
17th,  we  received,  in  the  Committee  of  Commissions,  two  hundred 
and  twelve  commissions.  These  names  were  enrolled  by  us,  their 
commissions  being  unexceptionable.  We  also  reported  seven  others, 
to  be  examined  by  the  Committee  on  Elections.  There  were  three 
of  these  without  their  commissions,  viz:  From  the  Presbytery  of 
Montrose,  the  Rev.  Adam  Millar;  from  the  Presbytery  of  Bedford, 
the  Rev.  Robert  G.  Thomson ;  and  from  the  Presbytery  of  Rich- 
mond, a  Mr.  Elliott.  From  the  Presbytery  of  New  Castle,  General 
Ciinningham,  a  ruling  elder,  whose  commission  wanted  the  signa- 
ture of  the  moderator.  From  the  Presbytery  of  Londonderry,  the 
Rev.  Ephraim  P.  Bradford,  whose  commission  wanted  the  signature 
of  the  clerk.  Two  persons  from  the  new  Presbytery  of  Green  Brier, 
in  Virginia,  Mr.  David  R.  Preston,  minister,  and  Mr.  Thomas  Beard, 
elder :  making  in  all,  two  hundred  and  nineteen.     If  it  be  proper  in 


344 

this  place,  I  can  tell  how  it  was  in  regard  to  Mr.  Moore.  When 
the  moderator  called  for  commissions  not  yet  presented  to  be  brought 
forward,  immediately,  or  soon  after,  Mr.  Moore  came  and  laid  his 
commission  on  the  clerks'  table.  It  was  examined  by  the  commit- 
tee after  the  other  body  had  withdrawn,  and  we  reported  his  name. 
I  am  confident  that  he  presented  it  that  morning.  His  name  is  on 
the  minute  as  one  of  those  called  and  recorded  present,  in  the  after- 
noon. In  the  afternoon,  one  hundred  and  fifty-four  answered  to 
their  names.  These  included  six  of  the  seven,  whose  commissions 
had  gone  to  the  Committee  of  Elections.  That  committee  was  ap- 
pointed directly  after  the  body  of  the  New  School  had  retired,  in 
the  morning.  Sixty-eight  did  not  answer  to  their  names.  Two  of 
these,  Messrs.  White  and  Magruder,  of  Charleston  Union  Presby- 
tery, afterwards  acted  with  our  Assembly.  Three,  Dr.  Green,  and 
Messrs.  Snowden  and  King,  had  not  yet  come  in,  and  were  recorded 
absent.  The  number  of  sixty-eight  was  thus  reduced  to  sixty-three. 
Of  those  marked  absent,  Mr.  Scott  rose,  gave  his  reasons  for  not 
answering,  and  I  believe  withdrew  and  went  home.  That  left  but 
sixty-two.  I  do  not  know  that  Mr.  Scott  went  home ;  he  did  not 
afterward  act  in  our  Assembly.  Of  the  one  hundred  and  fifty-four 
who  answered  to  their  names,  Messrs.  Rankin  and  Crothers,  from 
the  far  west,  expressed  a  wish  not  to  be  considered  as  acting  with 
that  body,  and  withdrew.  At  the  close  of  the  session,  when  the 
roll  was  called,  according  to  custom,  we  found  fifty-seven  absent 
without  leave,  all  being  of  the  number  of  sixty-eight  recorded  absent 
before.  Four  members  joined  our  Assembly,  arriving  after  the  first 
day,  one  on  the  ninth,  two  on  the  eleventh,  and  one  on  the  twelfth 
day  of  its  sessions,  making  the  whole  number  who  acted  with  that 
Assembly,  one  hundred  and  sixiy-one.  I  was  not  a  member  of  the 
Assembly.  Dr.  Witherspoon  was  present  in  the  Assembly  at  its 
opening.  He  was  the  moderator  immediately  preceding  Dr.  Elliott^ 
Dr.  Phillips  immediately  preceded  Dr.  Witherspoon.  I  suppose 
that  Dr.  Wm.  A.  M'Dowell  was  present,  though  not  a  member. 
He  had  been  moderator  in  1833.  There  were  others  present  who 
had  been  moderators.  Dr.  Green  had  been.  I  had  been  mode- 
rator. Dr.  Beman  was  moderator  in  1831.  I  was  appointed  stated 
clerk  in  the  year  1836,  after  Dr.  Ely  resigned.  Before  that,  I  held 
the  office  of  permanent  clerk,  or  scribe  of  the  Assembly,  from  182& 
to  1836.  In  1837  I  held  both  offices,  and  was  alone  on  the  Com- 
mittee of  Commissions. 

Cross-examination. — Interrogated  by  Mr.  Randall,  the  witness 
said:  When  the  roll  was  called,  at  the  close  of  the  Assembly,  fifty- 
seven  were  marked  absent.  It  was  either  fifty-seven  or  sixty-seven. 
I  am  perhaps  mistaken  in  the  number.  I  may  possibly  have  made 
a  mistake  in  counting  them. 

[Mr.  Randall  here  handed  the  witness  the  Old  School  minutes  of 
1838,  page  47,  requesting  him  to  count  the  list  of  absentees,  and  tell 
how  many  there  were.  After  repeated  counting,  the  number  was 
stated  by  the  witness  to  be  sixty-five.] 

Mr.  Hubhell. — Had  Dr.  Hoge  been  moderator  since  Dr.  Beman  1 

Dr.  M'Dowell. — I  am  not  able  immediately  to  say. 


245 

Mr.  McLean  having  asked  permission  to  explain  his  testimony, 
said :  I  have  been  informed,  that  my  testimony  might  be  misunder- 
stood. I  was  asked,  whether  I  had  not  said,  that  there  was  as  little 
disorder  as  possible  under  the  circumstances.  I  answered  in  the 
affirmative,  but  did  not  mean  that  it  should  be  inferred,  that  there 
was  little  or  no  disorder.  I  meant  only  that,  considering  the  busi- 
ness in  which  they  were  engaged,  they  made  as  little  disturbance 
as  could  be  expected.  Part  of  the  disorder  which  I  referred  to, 
w^as  made  by  Mr.  Cleaveland.  He  read  a  disorderly  paper,  and 
did  not  obey  the  moderator  when  called  to  order.  Then  a  number 
of  persons  rose,  and  went  toward  the  north  door.  They  stood  in 
the  aisles,  on  the  seats,  and  on  the  backs  of  the  pews.  I  was  una- 
ble to  hear  the  questions  put,  and  did  not  vote. 

The  respondents  here  closed,  and  the  plaintiffs  introduced  rebut- 
ting testimony,  as  proposed  last  evening. 

Rev.  Wm.  Hill,  D.  D.,  recalled  by  plaintiffs,  said :  I  think  there  was 
sufficient  time  given  for  a  reversal  of  Mr.  Cleaveland's  first  motion, 
that  for  the  appointment  of  Dr.  Beman.  I  think  that  I  am  not  mistaken 
when  I  say  that  it  was  reversed.  I  think  I  may  say  it  was  reversed. 
I  will  give  my  reasons.  When  Mr.  Cleaveland  was  about  to  put 
the  question,  we  had  then  arrived  at  a  most  critical  period  of  the 
proceedings.  It  was  the  most  deeply  interesting  to  me  of  any  part 
of  the  whole  transaction,  because  it  was  the  incipient  step  in  the 
organization.  My  feelings  of  interest  were  wrought  up  to  a  pretty 
high  degree,  and  the  proceedings  engaged  my  whole  attention.  I 
paid  peculiarly  strict  attention  to  what  was  going  on.  I  was  entirely 
neutral  as  regarded  the  controversy,  having  refused  to  attach  my- 
self to  either  party.  I  had  opposed  a  separate  organization  in  a 
meeting  of  consultation  which  had  been  previously  held. 

Mr.  Randall. — We  cannot  go  into  the  history  of  the  previous 
meeting,  but  you  may  state  the  ground  on  which  you  were  unwilling 
that  a  separate  organization  should  take  place. 

Witness. — That  is  precisely  what  I  was  going  to  state.     I  had 
determined  to  take  no  part  in  the  proceedings;  nor  did  I  take  any 
part  therein.   I  was  entirely  neutral.    And  I  was  opposed  to  a  sepa- 
rate organization  because  I  apprehended  that  such  a  course  would 
lead  to  results  much  more  painful  than  what  I  witnessed.     I  antici- 
pated a  scene  of  actual  violence,  and  could  not  conjecture  how  far 
that  violence  might  be  carried.     I  did  not  suppose  that  the  Old 
School  party  would  suffer  their  measures  to  be  defeated.     I  did 
not  know  but  collision  would  ensue,  amounting  to  a  scene  of  tumult 
and   violence.     I  feared  that  a  riot  would  be  the  consequence. 
This  was  my  full  expectation,  and  I  dreaded  the  result.    My  whole 
attention  was  drawn  to  the  proceedings,  of  course.     When  Mr. 
Cleaveland  made  the  motion  that  Dr.  Beman  should  take  the  chair, 
he  put  the  affirmative ;  "  All  those  who  are  in  favour  will  say  aye." 
At  this  moment  I  was  particularly  attentive  to   the  Old  School 
brethren,  casting  my  eyes  over  them,  to  see  what  they  would  do. 
There  arose  a  simultaneous  burst  of  ayes,  some  of  them,  I  thought, 
indecorously  and  offensively  loud,  but  I  know  not  from  whom,  in  a 
single  instance.  I  kept  my  face  toward  Dr.  Elliott.  Afterwards  there 

21* 


246 

fell  in  d  few  scattering  ayes.  They  appeared  to  come  from  back 
of  me,  but  I  did  not  turn  around.  Mr.  Cleaveland,  as,  from 
the  first,  he  had  intended  to  do  all  in  the  shortest  time  possible, 
revei-sed  the  question  very  quickly:  I  don't  know  that  all  the  scat- 
tering ayes  had  ceased  when  he  reversed  it.  I  heard  a  few  scat- 
tering noes,  principally  from  the  direction  of  the  Old  School  brethren-, 
a  few  from  the  south-west,  and  some  from  immediately  in  front  of  me 
in  the  south  part  of  the  house.  I  was  surprised  at  this,  because  I  ex- 
pected a  thundering  "  no  !"  I  was  surprised  that  there  had  been  any 
negatives,  unless  there  had  been  more.  I  thought  they  were  not 
well  trained,  at  any  rate.  1  supposed  that  if  they  voted  at  all  they 
would  have  tried  to  vote  the  others  down,  as  they  claimed  to  be  the 
majority.  For  these  reasons  I  think  I  can't  be  mistaken  in  my 
recollection. 

I  know  Dr.  Beecher,  and  saw  him  that  day :  he  sat  in  the  pew  imme- 
diately before  me.  During  all  these  transactions  he  sat  perfectly 
still,  and  behaved  with  decorum.  If  he  voted  in  the  affirma- 
tive, it  was  not  distinguishable  from  the  other  voices  in  that  neigh- 
bourhood. If  he  did  vote  at  all,  it  was  not  in  a  very  loud  or  re- 
markable tone  of  voice.  He  is,  I  believe,  at  present,  in  Cincinnati, 
not  here  on  the  ground.  He  is  very  much  of  a  gentleman  in  his 
deportment.  I  could  not  be  deceived  in  regard  to  him,  for  I  sat 
directly  back  of  him.  Mr.  Cleaveland  and  Dr.  Patton  were  in  the 
pew  in  front  of  me,  and  Dr.  Beecher  sat  in  the  same  pew.  Mr. 
Cleaveland  was  so  near  me,  that  I  could  have  laid  my  hand  on  his 
shoulder  as  he  rose.  I  was  as  favourably  situated  for  hearing  as  I 
could  have  been ;  hence  I  infer,  that  I  could  not  be  mistaken  in  the 
case. 

Cross-examination.  Interrogated  by  Mr.  Preston,  the  witness  said ; 
J  was  surprised  at  hearing  any  "  noes,"  unless  there  were  more- 
I  had  expected  that  the  noes  would  be  of  another  character,  and 
was  agreeably  disappointed.  I  had  anticipated  events,  and  feared 
that  a  great  riot  would  take  place.  From  personal  knowledge  I 
really  cannot  say  whether  the  Old  School  had  a  majority.  I  sup- 
pose'that  the  majority  must  be  very  small  either  way.  I  know  they 
claim  to  have  had  a  majority,  and  I  rather  suppose  that  it  was  the 
fact. 

Mr.  James  R.  Geinmill,  called  by  relators,  interrogated  by  Mr, 
Randall,  said  :  I  attended  the  church  in  Ranstead  court  on  the  day 
of  the  organization  of  the  Assembly  of  1838.  I  was  leaning  on  a 
pew,  near  the  south-west  door,  just  under  the  gallery,  not  far  from 
the  moderator.  I  saw  Mr.  Cleaveland  rise,  but  did  not  hear  much 
of  what  he  said,  distinctly,  because  of  the  noise  around  me.  In  the 
neighbourhood  where  I  was,  there  was  a  great  deal  of  scraping  with 
the  feet,  stamping,  and  other  unseemly  noises.  I  saw  a  great  num- 
ber of  the  Old  School  members  around  me.  I  saw  none  others  that  I 
knew  in  that  pew,  or  in  the  vicinity  where  I  was.  I  recognized 
several  persons  whom  I  knew  at  the  time.     One  of  them  was  Mr. 

Latta.     Another  was  the  Rev.  Mr.  Boardman,  pastor  of  the 

Tenth  Presbyterian  Church  in  this  city.     There  were  other  gentle- 
men near  and  around  me  whom  I  recognized  at  the  time,  but  I 


247 

cannot  now  give  their  names.  I  merely  state  what  I  know.  I  did 
not  consider  their  conduct  as  becoming  gentlemen — much  less  re- 
verend divines  and  ministers  of  the  gospel.  *  *  #  I  did  not 
know  all  the  gentlemen  near  me.  William  Finney  f  think  was  one 
of  them,  though  I  might  be  mistaken,  as  I  had  not  seen  him  for  se- 
veral years.  Some  of  them  scraped  with  their  feet  and  stamped 
on  the  floor,  and  there  was  considerable  other  noise  in  that  neigh- 
bourhood. This  was  whilst  Mr.  Cleaveland  was  speaking  or  read- 
ing. His  face  was,  at  first,  toward  the  moderator,  that  is,  when 
he  first  commenced.  I  spoke  to  some  of  the  gentlemen  around  me, 
and  asked  what  was  the  necessity  for  making  so  much  noise.  I 
knew  some  of  them  to  be  ministers,  and  said  to  them,  that  I  thought 
that  was  pretty  conduct  for  clergymen,  and  asked  them  if  they  had 
not  better  hear  what  the  gentleman  who  was  reading  had  to  say. 
One  of  them  observed  "  yes,  they  had  better  do  so." 

Cross-examination.  Interrogated  by  Mr.  Huhhell  and  Mr.  Preston, 
the  witness  said:  I  turned  and  said,  this  was  pretty  conduct  for 
clergymen ;  that  I  thought  they  might  hear  what  the  gentleman 
had  to  read.  I  was  not  a  member.  I  am  not  a  member  of  any 
church,  and  felt  that  it  was  rather  assuming  for  me  to  rebuke  them, 
but  I  thought  their  conduct  justified  me,  and  I  wanted  to  hear.  I 
attend  the  First  Presbyterian  Church,  Mr.  Barnes'.  I  knew  but 
few  of  those  near  me.  Mr.  Boardman  was  two  or  three  pews  off, 
and  so  was  Mr.  WiUiam  or  James  Latta.  The  one  whom  I  took 
for  Mr.  Finney,  was  the  nearest  to  me  that  I  knew.  My  face  was 
towards  the  moderator.  I  did  hear  scraping  among  these  gentle- 
men. I  addressed  those  nearest  to  me.  Mr.  Boardman  was  a  pew 
or  two  off'.  I  took  those  near  me  to  be  ministers.  My  observa- 
tion was  a  general  one,  it  was  not  addressed  to  Mr.  Boardman,  or 
to  Mr.  Latta,  or  to  any  one  in  particular.  I  don't  recollect  whether 
they  two  were  near  enough  to  hear  it.  There  was  a  tumult  through 
the  house.  1  cannot  say  that  it  was  confined  to  the  Old  School 
party,  but  I  understood,  that  those  near  me  were  the  Old  School. 
They  generally  acted  with  the  Old  School  party.  I  saw  some 
there,  who  had  acted  with  the  Old  School  in  1837.  Mr.  Latta  was 
such  a  one.  I  think  all  near  me  were  Old  School,  as  well  as  I 
could  recognize  them.  I  am  not  positive  about  any  whose  names 
I  did  not  know.  I  should  not  call  it  a  riot:  there  was  scraping  and 
coughing.  I  was  twenty  or  thirty  feet  from  Mr.  Cleaveland,  and 
there  did  not  appear  to  be  as  much  noise  near  him,  as  about  where 
I  was.  [Witness  here  described  the  positions  by  reference  to  the 
plan  of  the  house.]  I  heard  Mr.  Cleaveland  put  his  motion  not- 
withstanding the  noise,  and  I  heard  a  loud  response  of  "aye."  I 
afterwards  heard  five  or  six  "  noes,"  I  should  think,  in  the  part  of 
the  house  where  I  was.  The  ayes  were  in  parts  of  the  house  far- 
ther north.  I  should  think  them  abundantly  competent  to  carry 
the  question.  They  were  numerous.  I  changed  my  position  and 
went  north,  after  the  vote  was  taken.  I  worked  my  way  through 
the  crowd  in  getting  there,  with  difficulty. 

Mr.  Ingersoll. — Are  the  pews  or  aisles  of  that  church  carpeted  ? 

Witness. — I  don't  know,  I  rather  think  there  is  a  brick  pavement. 


248 

Mr.  Preston. — How  happened  you  in  the  first  place  to  get  into 
the  neighbourhood  of  Mr.  Boardnnan  and  Mr.  Latta,  in  the  midst  of 
the  Old  School  men  ? 

Witness. — It  was  merely  by  accident,  so  far  as  I  know.  I  went  in 
just  before  Dr.  Elliott  finished  his  sermon,  and  entered  from  the 
grave-yard.  My  going  to  that  quarter  of  the  house  was  purely  ac- 
cidental. Indeed,  it  was  accidental  that  I  went  at  all.  I  had  some 
business  up  Market  street,  and  I  merely  stopped  in  out  of  curiosity 
to  see  what  was  going  on.  I  had  understood  there  was  to  be  some 
fuss.  I  anticipated  as  much,  as  they  had  been  quarelling  for  some 
time.     I  thought  I  would  like  to  see  and  hear  what  was  passing. 

Some  question  being  raised  respecting  the  correctness  of  the  wit- 
ness in  regard  to  Mr.  Latta,  Mr.  Randall  said,  the  minutes  show 
that  Mr.  Latta  was  a  member  of  the  Assembly,  both  in  1837  and 
1838. 

Plaintiflfs  called  Mr.  Elihu  D.  Tarr.  Interrogated  by  Mr.  Randall, 
the  witness  said :  My  profession  is  the  same  as  your  own.  I  at- 
tended at  the  organization  of  the  General  Assembly  of  183S,  in 
Ranstead  court.  I  sat  three  or  four  pews  behind  Mr.  Cleaveland. 
I  heard  him  put  the  motion  that  Dr.  Beman  take  the  chair  as  mo- 
derator. He  put  it  clearly  and  distinctly.  I  heard  the  "ayes" 
from  a  large  number  of  persons.  I  heard  the  question  reversed.  I 
distinctly  heard  the  reversal,  and  heard  a  few  "  noes"  in  the  north- 
west part  of  the  house  directly  afterward.  I  was  surprised  at  the 
vote,  as  I  had  understood  that  the  Old  School  party  had  the  majo- 
rity, and  was  surprised  that  they  did  not  vote  the  motion  down. 
This  caused  me  to  take  more  particular  notice.  I  am  confident 
that  I  cannot  be  mistaken.  It  was  from  the  south-west  part  of  the 
house  that  the  noes  came.  Did  I  before  say  "  north-west?"  As  I 
looked  toward  the  pulpit,  they  came  from  my  front,  and  to  the 
right  of  that. 

Cross-examination.  Interrogated  by  Mr.  Preston,  witness  said : 
I  am  certain  that  I  heard  the  noes  distinctly.  I  have  attended  the 
legislature  of  this  state.  There  were  probably  from  three  to  half 
a  dozen  noes,  but  I  did  not  count  them.  I  heard  the  question  put 
in  regard  to  the  clerks,  and  if  my  recollection  serves  me,  there 
were  more  noes  on  that  than  on  the  former  question ;  but  about 
this,  I  am  not  so  certain.  I  think  certainly  there  were  answers  in 
the  negative,  but  whether  more  or  not  I  can't  tell.  To  the  best  of 
my  recollection,  the  question  was  reversed,  on  each  of  the  motions. 
They  were  all  reversed.  I  distinctly  heard  the  reversal.  The  ne- 
gative was  put  on  all  the  questions  which  were  put  by  Mr.  Cleave- 
land, Dr.  Beman  and  Dr.  Fisher.  I  heard  the  motion  made  in 
regard  to  Dr.  Fisher,  but  don't  recollect  whether  there  were  any 
noes  on  that  vote.  I  can't  say  whether  there  were  any  or  not.  I 
was  in  the  neighbourhood  of  and  surrounded  by  the  New  School 
party,  and  was  very  near  Mr.  Cleaveland.  Up  to  the  time  of  the 
General  Assembly  of  1838,  I  did  not,  strictly  speaking,  belong  to 
either  the  Old  or  the  New  School  party,  though  I  inchned  to  the 
Old  School.  The  proceedings  here  and  those  of  the  majority  in 
the  Assembly  of  1837  determined  me.     I  am  now  opposed  to  the 


249 

Old  School  party,  and  a  decided  advocate  of  the  New  School  pro- 
ceedings. I  was  formerly  a  member  of  the  Presbyterian  church  of 
which  Mr.  Winchester  was  the  pastor,  afterward  of  Mr.  Board- 
man's,  and  I  am  now  a  member  of  Mr.  Rood's  chm'ch.  Mr.  Rood, 
my  impression  is,  belongs  to  the  Third  Presbytery  of  Philadelphia, 
but  I  cannot  say  certainly.  When  I  removed  to  the  Northern  Li- 
berties, I  went  to  his  church,  without  asking  whether  he  was  New 
or  Old  School. 

Mr.  James  W.  Paul  called  by  plaintiffs.  Interrogated  by 
Mr.  Randall,  the  witness  said :  I  am  a  member  of  the  bar. 
I  attended  the  organization  of  the  General  Assembly  of  the  Pres- 
byterian Church,  in  May,  1838.  I  was  in  the  gallery,  immediately 
in  front  of  the  organ.  I  heard  Mr.  Cleaveland  put  his  motion.  I 
distinctly  heard  the  motion  put,  and  the  vote  in  the  affirmative  and 
negative.  I  am  satisfied  that  the  question  was  reversed.  The 
"  ayes"  were  uttered  very  loudly,  and  the  "  noes"  in  a  lower  tone  of 
voice.  They  were  few  and  scattering.  I  am  fully  satisfied  that 
the  question  was  put  in  the  negative.  Such  was  my  impression  at 
the  time.  I  think  I  cannot  be  mistaken  in  saying  that  the  question 
was  reversed.  Knowing  Dr.  Beman  to  be  a  very  prominent  man 
in  the  New  School  party,  I  thought  it  very  strange  that  such  a  nomi- 
nation should  pass  without  a  stronger  opposition  from  the  Old  School 
men.  There  is  no  question  that  there  was  sufficient  time  for  the 
question  to  be  put  and  reversed,  if  put  rapidly,  though  the  interval 
was  not  long  between  the  affirmative  and  negative  vote. 

Mr.  Randall.— You  say  that  there  was  time,  if  the  reverse  of  the 
question  was  promptly  put? 

Mr.  Ingersoll  objected  to  this  as  a  leading  question. 

Mr.  Randall. — If  the  reverse  was  promptly  put,  was  there  time 
for  it  1 

After  a  short  colloquy  between  the  counsel,  the  witness  continued- 
My  recollection  is,  that  there  was  ample  time  for  the  reversal.  But 
I  did  not  expect  to  be  called  to  testify  as  a  witness,  and  therefore 
did  not  charge  my  memory  with  what  passed.  I  speak  from  recol- 
lection merely.  I  am  a  member  of  the  First  Presbyterian  Church 
— Mr.  Barnes'  Church. 

Hon.  Henry  Brown  called  by  the  relators.  Interrogated  by 
Mr.  Randall,  the  witness  said :  I  attended  the  organization 
of  the  General  Assembly  of  1838.  I  heard  Mr.  Cleaveland  make 
his  motion,  and  put  the  question  thereon.  I  heard  him  reverse  it 
very  distinctly.  I  am  absolutely  certain  that  I  heard  him  reverse 
the  question.  I  cannot  be  mistaken  in  this.  I  sat  on  the  west 
side  of  the  east  aisle  of  the  church,  one  pew  east  of  Mr.  Cleave- 
land, and  two  or  three  north  of  him.  The  question  was  put  dis- 
tinctly, in  a  very  clear  voice,  and  might  have  been  heard  all  over 
the  house.  There  was  immediately  a  very  loud  "aye,"  and  one 
individual  responded  aye  much  louder  than  any  other.  Mr.  Cleave- 
land then  reversed  the  question,  I  should  say,  with  despatch,  but  not 
so  rapidly  as  to  prevent  him  from  speaking  very  distinctly  and 
clearly.  I  have  known  a  question  to  be  reversed  more  rapidly  than 
this  was.     After  he  reversed  the  question,  I  heard  several  no^$  on 


250 

the  west  side  of  the  house,  and  to  the  south  of  where  I  sat,  and 
two  or  three  in  the  eastern  part  of  the  house,  one  of  them  very  near 
to  me.  I  am  confident  that  I  heard  him  distinctly  put  and  reverse 
the  question,  and  that  there  were  several  "  noes."  I  was  a  member 
of  the  General  Assembly  of  1837  and  of  that  of  1838,  from  the 
Presbytery  of  Lorain,  in  the  Synod  of  the  Western  Reserve.  I 
acted  with  the  body  which  held  its  sessions  in  the  First  Presby- 
terian Church  during  its  session  of  about  two  weeks.  There  was  a 
man  near  me  who  voted  aye  very  loud. 

Mr.  Randall. — Did  you  know  him '' 

Witness. — I  was  not  acquainted  with  him  previous  to  that  time, 
but  was  afterwards  told  that  his  name  was  Foster.  He  was  a 
ruling  elder  from  the  Presbytery  of  Montrose,  in  this  state.  I 
think  he  spoke  twice  as  loud  as  any  other  person  in  the  house. 
I  took  hold  of  his  arm  and  told  him  not  to  halloo  so  loud  next  time. 

Mr.  Randall. — Then  you  know  that  the  little  gentleman  with  the 
loud  voice  was  not  Dr.  Beecher? 

Witness. — it  was  not  Dr.  Beecher.  He  did  not  at  any  time  stand 
on  the  top  of  a  pew,  but  towards  the  close  of  the  proceedings  I 
think  that  he  sat  on  the  back  of  one. 

Cross-examination. — Interrogated  by  Mr.  Preston,  the  witness 
said :  I  did  vote  on  all  the  questions.  I  said  "  aye"  every  time,  or 
at  least  I  intended  to  do  so.  My  commission  was  rejected  by  the 
Committee  on  Commissions,  Mr.  M'Dowell  and  Mr.  Krebs.  I 
cannot  tell  whether  all  those  whose  commissions  were  rejected, 
voted  on  the  questions  put  by  Mr.  Cleaveland,  Dr.  Beman,  and  Dr. 
Fisher.  I  can't  say  about  others.  I  myself  voted  in  the  affirmative 
on  all  the  questions,  and  presume  that  others  did.  I  know  that  one 
did.     I  could  not  see  them  all  in  so  large  an  assembly. 

Counsel. — Have  you  not  expressed  a  doubt  whether  these  questions 
were  reversed? 

Witness. — I  have  not.  I  have  heard  stated,  a  doubt  in  regard  to 
the  reversal  of  the  questions,  which  I  do  not  feel.  I  distinctly  heard 
the  question  reversed,  on  the  motion  in  regard  to  Dr.  Beman ;  dis- 
tinctly, on  the  choice  of  clerks;  and  I  believe  that  it  was  reversed 
on  the  appointment  of  Dr.  Fisher,  in  a  plain,  distinct  voice,  the  two 
former  louder  than  usual.  I  have  never  doubted,  and  do  not  now 
feel  any  doubt  as  to  this  matter.  I  cannot  say  that  every  question 
was  reversed,  but  I  have  no  doubt  in  regard  to  the  questions  on  Dr. 
Beman,  Dr.  Fisher,  and  the  clerks.  I  was  one  range  of  pews  east, 
and  two  or  three  pews  north  of  Mr.  Cleaveland.  He  was  at  the 
east  end  of  his  pew,  and  I  in  the  middle,  or  the  west  end  of  mine. 
We  were  probably  ten,  or  it  might  be  a  dozen  feet  apart. 

Mr.  Hubbell. — Has  there  not  been  a  suit  brought  in  your  name 
against  Dr.  Elliott,  Dr.  M'Dowell,  and  Mr.  Krebs,  for  an  infringe- 
ment of  your  rights? 

Witness. — There  is  one  suit  in  my  name,  among  those  read  from 
the  docket. 

Mr.  Hubbell. — Are  you  not  aware  that  there  have  been  jive  suits 
commenced? 

Witness. — Perhaps  there  are  five,  I  was  not  very  particular  about 


J 


251 

that  matter.  I  left  it  to  my  counsel,  with  entire  confidence  that  it 
would  be  managed  correctly. 

Mr.  Thomas  Elmes  called  by  the  plaintiffs. 

Interrogated  by  Mr.  Randall,  the  witness  said :  I  belong  to  the 
First  Congregational  Church  of  this  city.  The  church  of  which 
Mr.  Todd  is  pastor.  J  have  no  connexion  with  the  Presbyterian 
Church  whatever.  I  have  not  heard  the  testimony  of  the  witnesses 
which  have  been  examined,  with  the  exception  of  one  or  two  to-day. 
I  attended  at  the  organization  of  the  General  Assembly  in  Ranstead 
court,  on  the  17th  of  May,  18-38.  I  went  in  at  the  west  door  of 
the  house,  from  the  burying-ground,  and  stood  leaning  on  the  rail 
of  the  pew  near  the  door.  J  heard  Mr.  Cleaveland's  motion  very 
distinctly  put,  the  motion  for  Dr.  Beman  to  take  the  chair.  I  heard 
the  affirmative  very  distinctly,  and  several  negatives,  say  two  or 
three,  after  a  short  interval.  I  stood  near  the  moderator.  Dr. 
Miller  was  between  Dr.  Elliott  and  me.  Dr.  Elliott  hammered  and 
called  to  order,  and  Dr.  Miller  tried  to  hush  the  noise.  He  put  his 
hand  up  as  though  to  stop  the  tumult,  and  used  some  expression 
like,  "  Let  them  go  through."  Dr.  Miller,  I  think,  stood  up  at  this 
moment.  He  had  before  been  sitting.  This  was  about  the  time 
Mr.  Cleaveland  was  endeavouring  to  read  his  paper.  The  tumult 
was  the  calling  to  order,  very  loudly,  in  the  neighbourhood  of  the 
moderator.  All  the  noise,  pretty  much,  that  I  heard  was  in  that 
part  of  the  house.  I  know  the  Rev.  George  Duffield.  He  is  now 
in  Detroit,  as  I  understand.  I  have  never  known  him  to  use  a  cane. 
I  have  known  him  for  several  years,  but  more  particularly  for  about 
three.  When  in  Philadelphia,  he  staid  at  my  house  for  some  time. 
I  never  saw  him  use  a  cane.  His  deportment  was  always  very 
gentlemanly.  I  never  heard  him  use  coarse  language.  He  is  far 
from  doing  so. 

Cross-examined  by  Mr.  Preston. — I  did  not  see  Mr.  Duffield  pre- 
sent at  the  organization  of  the  Assembly  of  1838.  He  did  not  walk 
there,  or  come  away,  with  me.  The  reason  why  I  could  not  hear 
all  distinctly,  was,  that  there  were  calls  to  order.  The  moderator 
called  to  order  very  loudly,  and  thumped  with  his  hammer;  and 
others  around  him  called  order  loudly.  There  was  a  good  deal  of 
stir  and  bustle.  This  was  what  I  meant,  when  I  spoke  of  tumult. 
I  perceived  no  other  noise,  or  movement,  until  Mr.  Cleaveland  had 
made  his  motion.  When  that  motion  had  been  put.  Dr.  Beman 
stepped  into  the  aisle,  and  others  at  the  same  time.  The  affirma- 
tive vote  was  very  numerous.  There  were  a  few  noes.  I  did  not 
hear  the  negative  distinctly,  but  some  said  "No."  I  did  not  hear 
any  noes  mixed  with  the  ayes.  There  was  a  pretty  loud  burst  of 
ayes,  then  a  few  scattering  ones;  then,  after  a  short  pause,  a  few 
noes.  I  heard  Dr.  Mason  nominated  as  clerk,  but  I  do  not  know- 
by  whom.  I  do  not  distinctly  recollect  hearing  the  motion  put,  but 
I  think  Mr.  Cleaveland  put  it.  I  did  not  hear  any  noes  on  that 
question.  Dr.  Miller  was  between  me  and  the  moderator,  some- 
where near  the  moderator.  Mr.  Cleaveland  was  fifteen  or  twenty 
feet  from  me.  I  would  not  like  to  say,  that  I  distinctly  saw  Mr. 
Cleaveland  when  he  made  his  motion.     I  can't  say  that  Mr.  Cleave- 


252 

land  put  the  question  for  the  choice  of  clerks:  it  might  have  been 
Dr.  Beman.  I  belonged  to  the  Congregational  Church  at  that  time. 
I  was  once  an  elder  in  the  Presbyterian  Church,  and  was  a  delegate 
to  the  Assembly  that  met  at  Pittsburg.  I  can  tell  how  I  voted  there. 
I  sympathize  with  those  who  do  right.  I  don't  know  what  is  un- 
derstood by  Old  School  or  New  School.  I  don't  belong  to  either. 
Other  people  must  judge  which  I  belonged  to.  I  profess  to  be  a 
Calvinist;  was  an  elder  in  the  Fifth  Presbyterian  Church.  Mr. 
Duffield  was  pastor  of  it  a  short  time.  I  was  a  Presbyterian  while 
I  was  in  that  church  :  I  have  since  become  a  Congregationalist,  to 
get  out  of  the  quarrels  of  the  other  church.  I  don't  recollect  ever 
saying  that  this  was  a  contest  between  Presbyterians  and  Congre- 
gationalists,  or  that  the  Presbyterians  were  struggling  for  existence. 

Mr.  Preston. — Is  it  your  opinion  that  it  is  such  a  struggle? 

Mr.  Elmes. — I  never  did  conceive  it  to  be  so.  I  have  never 
thought  or  stated  that  that  was  the  real  struggle.  I  joined  a  Con- 
greajational  Church  in  Maine  in  1812.  I  was  ordained  an  elder  in 
1828.  I  became  a  member  of  the  Presbyterian  Church  in  1815. 
Several  years  I  belonged  to  the  Sixth  Presbyterian  Church.  Two 
years  ago,  I  again  entered  into  connexion  with  the  Congregational 
Church.  I  had  been  a  Congregationalist  first  in  Augusta,  Maine. 
I  joined  Mr.  Todd's  church  in  the  beginning  of  the  spring  of  1837, 
after  the  church  was  completed,  because  it  was  convenient  for  me, 
though  I  probably  should  not  have  left  the  Presbyterian  Church,  if 
it  had  not  been  for  their  quarrels.  The  church  is  in  Tenth  street 
below  Spruce. 

Rev.  James  M.  Davis,  called  by  the  plaintiffs,  interrogated  by  Mr. 
Randall,  said:  I  am  a  minister,  am  preaching  to  the  Presbyterian 
Church  at  Fairmount.  I  attended  at  the  organization  of  the  As- 
sembly of  1838.  I  remember  Mr.  Cleaveland's  motion.  I  was 
standing  half  way  down  the  middle  aisle  when  he  rose,  and  heard 
his  prefatory  remarks.  I  heard  Mr.  Cleaveland's  motion  dis- 
tinctly, and  the  reversal  with  equal  distinctness.  I  heard  from  eight 
to  ten  negative  voices.  My  impression  was,  that  they  came  from 
the  quarter  where  the  Old  School  brethren  sat.  I  was  expecting 
them  from  that  quarter,  and  think  I  do  not  mistake.  There  was 
considerable  confusion  when  Mr.  Cleaveland  commenced.  There 
were  calls  to  order  by  the  moderator,  and  by  persons  at  his  left; 
but  they  soon  desisted,  and,  at  the  close  of  his  remarks,  the  house 
was  still.  His  last  sentence  has  been  repeated  by  every  witness. 
When  he  made  his  motion,  the  house  was  very  still ;  all  the  noise 
had  subsided  by  that  time.  I  formerly  preached  at  the  First  Pres- 
byterian Church  at  ?Janayunk,  belonging  to  the  Third  presbytery. 
I  sympathize  entirely  with  the  New  School. 

Cross-examined  In/  Mr.  Preston. — I  heard  the  reversal  of  the  ques- 
tion. It  was  put  distinctly  as  the  affirmative,  but  more  rapid.  I 
think  it  was  distinct  enough  for  every  one  in  the  house  to  hear  it, 
if  disposed  to  hear,  as  I  was.  An  individual  might  have  made  so 
much  noise,  that  he  could  not  hear.  When  it  was  put,  the  house 
was  quiet.  I  was  about  the  middle  of  the  aisle.  Dr.  Beman  came 
out  of  the  pew  by  my  side,  and  put  the  question  on  the  appointment 


253 

of  clerks.  I  was  not  a  member  of  the  Assembly,  and  did  not  vote. 
I  am  connected  with  Mr.  M'Clelland,  one  of  the  relators  in  this  case. 
He  is  my  faiher-in-law.  I  was  licensed  by  a  Congregational  Asso- 
ciation, but  ordained  by  the  presbytery.  I  was  born  in  jXew  Eng- 
land, and  received  my  theological  education  at  New  Haven.  I  con- 
tinued near  to  Dr.  Benian  till  the  close  of  the  proceedings,  and  left 
the  church  when  those  did  who  acted  with  him.  I  recollect  some 
noes  on  one  or  two  of  the  motions.  There  was  considerable  clap- 
ping and  some  hissing,  when  Dr.  Fisher  announced  the  adjournment. 
I  mentioned  my  relationship  to  Mr.  M'Clelland,  to  Mr.  Gilbert,  and 
he  said  that  he  would  tell  Mr.  Randall. 

The  plaintiffs  called  Rev.  Daniel  W.  Lathrop.  Interrogated  by 
Mr.  Randall,  the  witness  said:  I  attended  the  Assembly  of  1838,  as 
a  commissioner  from  the  Presbytery  of  Lorain,  in  the  Synod  of  the 
Western  Reserve,  That  synod  is  one  of  the  excinded.  I  came  as 
a  minister.  I  heard  Mr.  Cleaveland's  remarks,  and  his  motion,  with 
perfect  distinctness.  At  the  conclusion  of  his  introductory  remarks, 
he  moved  that  Dr.  Beman  should  be  moderator,  my  impression  is, 
or  that  he  should  take  the  chair.  I  should  not  hesitate  to  say  un- 
qualifiedly that  "  moderator"  was  the  term  used,  had  not  the  other 
form  of  expression  been  so  often  repeated  in  my  hearing,  here  in 
Court.  Referring  only  to  my  own  recollection,  I  say  that  Mr. 
Cleaveland  used  the  word  "  moderator."  He  stated  the  question 
distinctly,  in  his  usual  loud  and  clear  voice.  The  question  was  put 
in  a  voice  louder  than  is  usual  in  the  Assembly.  He  put  both  the 
affirmative  and  the  negative.     There  were  some  negative  votes. 

Counsel. — From  what  part  of  the  house  did  the  negatives  come? 

Witness. — One  of  them  was  my  own.  I  do  not  recollect  any 
others  immediately  in  my  neighbourhood.  I  was  on  the  east  aisle. 
Some  two  or  three  of  the  noes  I  should  think  nearly  in  front  of  me, 
and  a  little  more  toward  the  south-east  quarter  of  the  church.  The 
others  appeared  to  come  from  the  south-west  part  of  the  house. 
My  recollection  of  the  noise  that  I  heard,  is,  that  it  consisted  prin- 
cipally of  cries  of  order,  from  the  south  and  south-west  parts  of  the 
house,  with  some  from  the  south-east,  chiefly  from  near  the  mode- 
rator, and  from  west  of  him.  I  heard  no  noise,  or  confusion,  in  the 
vicinity  of  Mr.  Cleaveland.  With  the  exception  of  himself,  and 
the  others  who  proposed  questions,  all  were  silent,  until  the  ayes 
were  called  for.  Then  there  was  a  distinct  and  loud  response.  I 
do  not  recollect  any  noise  in  that  vicinity,  other  than  the  one  alluded 
to.  There  was  one  aye  louder  than  the  rest.  I  saw  the  gentleman 
from  whom  I  supposed  the  loud  aye  came:  he  was  an  elder  from 
the  Presbytery  of  Montrose.     His  name  was  Foster. 

Counsel. — Then  you  are  quite  certain  that  it  was  not  Dr.  Beecher 
who  responded  aye  so  very  loudly? 

Witness. — I  am  certain. 

Cross-examination  by  Mr.  Preston. — Did  I  understand  you  to  say 
that  you  voted  in  the  negative  on  the  nomination  of  Dr.  Beman? 

Witness. — I  did.     I  recollect  m.y  reason  for  so  voting. 

Mr.  Preston. — Did  you  also  vote  in  the  affirmative  on  that  ques- 
tion? 

22 


254 

Witness. — I  don't  recollect  voting  so,  and  think  that  I  could  not 
have  so  done,  with  the  reason  that  I  had  for  voting  the  other  way. 

Mr.  Preston. — You  have  spoken  of  your  reasons  for  voting  in  the 
negative:  what  were  those  reasons? 

[The  plaintiffs'  counsel  objected  to  the  question,  and  the  Court 
ruled  that  the  reasons  of  the  witness  for  his  vote  in  the  Assembly, 
could  not  be  demanded.] 

Mr.  Preston. — I  will  then  ask  whether  these  reasons  were  apart 
from  what  caused  the  witness  to  recollect  that  he  voted  in  the 
negative. 

A  colloquy  of  some  length  ensued  between  the  counsel. 

Mr.  Ingersoll  urged  that  the  recollection  of  the  witness,  of  his  rea- 
son for  voting  in  the  negative,  had  been  mentioned  by  himself,  and 
would  be  considered  as  strengthening  the  evidence  that  the  question 
was  reversed,  and  that  now  the  counsel  had  a  right  to  know  what 
that  reason  was. 

Mr.  Preston  said:  Suppose  the  reason  of  the  witness  was  a  col- 
lusion among  the  New  School  men,  an  agreement  in  their  previous 
consultations,  to  throw  a  few  votes  in  the  negative,  so  as  to  cover 
the  pretence,  that  we  of  the  Old  School  understood  what  was  doing, 
and  such  of  us  as  chose,  participated  in  the  vote?  1  have  been 
extremely  desirous  to  reach  some  evidence  of  such  a  fact,  and  ex- 
pect that  we  can  find  it  in  the  reasons  of  this  witness. 

The  ivitness  said :  If  the  Court  pleased,  he  had  no  manner  of  ob- 
jection to  stating  the  reason,  the  allusion  to  which  had  been  elicited 
only  by  the  interrogatories  of  the  counsel,  and  he  was  not  aware 
that  it  would  be  of  particular  importance  to  either  party  in  this  case. 

[The  objection  was  withdrawn,  and  the  Court  said  the  witness 
could  proceed.] 

Witness. — I  had  attended  no  meetings  for  consultation.  Having 
arrived  in  the  city  only  at  ten  o'clock  on  the  evening  previous  to 
the  opening  of  the  Assembly,  after  a  fatiguing  journey,  I  did  not 
leave  my  hotel  till  after  ten  o'clock  in  the  morning.  I  saw  no  mem- 
ber of  the  Assembly,  or  other  person  of  my  acquaintance,  of  either 
party,  or  of  any  school,  until  I  fell  in  w'ith  two  or  three  commis- 
sioners on  my  way  to  the  committee-room  of  the  clerks.  I  had  no 
intimation  of  any  peculiarity  in  the  organization  of  the  Assembly, 
from  any  gentleman  in  the  city,  or  on  my  way.  I  went  to  the 
house  at  the  usual  time,  and  found  a  seat  as  I  could.  My  attention 
was  very  much  absorbed,  during  the  religious  exercises,  by  what 
seemed  to  me  the  very  peculiar  character  of  those  services.  I 
was  pondering  on  those  strange  peculiarities,  and  was  very  much 
grieved  and  deeply  aftected  by  them,  until  my  attention  was  ar- 
rested by  the  subsequent  proceedings.  When  Mr.  Cleaveland 
rose,  and  moved  the  appointment  of  another  moderator,  it  did  not 
strike  me  favourably,  nor  seem  to  be  the  course  which  I  should 
choose  to  pursue.  This  was  the  simple  and  only  reason  for 
my  voting  in  the  negative. 

By  Mr.  Preston. — I  believe  that  I  voted  in  the  affirmative 
on  all  the  subsequent  questions,  excepting  the  first  nomination 
for  clerks;  as  to  this,  I  am  not  certain.     My  commission  had 


255 

been  rejected  by  Dr.  M'Dowell.  I  think  that  on  my  way,  or 
as  I  was  coming  out  of  the  committee-room,  I  gave  it  into  the 
hands  of  a  gentleman,  who  had  been  similarly  treated :  I  think  it 
was  Mr.  Squier.  I  am  not  certain  that  I  had  not  the  commission 
at  the  time.  I  have  no  stronger  assurance,  in  regard  to  this  point, 
than  in  relation  to  the  other.  I  think  I  had  given  it  to  Mr.  Squier. 
I  subsequently  sat  with  the  body  that  adjourned  to  the  church  on 
Washington  Square.  I  acted,  in  that  Assembly,  in  the  Committee 
of  Overtures,  but  I  think  not  on  any  other  standing  committee.  I 
do  not  recollect  whether  I  was  on  any  other  committee.  I  think  I 
was  not  on  the  committee  appointed  to  revise  the  minutes.  I  think 
I  was  a  member  of  the  committee  to  I'brm  a  Pastoral  Letter.  I 
was.  My  name  was  added  to  that  committee  subsequent  to  its  first 
appointment;  and  I  now  recollect  meeting  repeatedly  with  the 
committee.  I  have  no  recollection  of  being  on  a  committee  to 
prepare  a  minute  of  the  organization  of  the  Assembly.  My  im- 
pression is,  that  there  was  such  a  committee.  My  recollection  is 
not  distinct  in  regard  to  this  point,  but  such  is  my  impression.  I 
cannot  tell  how  often  I  have  been  a  member  of  the  Assembly ;  I 
think,  about  eight  times. 

Counsel. — Did  you  not  once  attend  as  a  committee-man? 

Witness. — I  did;  the  session  of  1820.  I  came  to  that  Assembly, 
of  which  Dr.  John  M'Dowell  was  chosen  moderator,  from  the  Pres- 
bytery of  Hartford,  in  the  Synod  of  Pittsburg,  then,  now,  and  ever, 
a  good,  thorough-going  Old  School  synod.  My  commission  was 
questioned,  and  discussed  a  long  while,  and  the  previous  mode- 
rator, seeing  that  the  discussion  was  likely  to  occupy  considerable 
time,  asked  me  if  I  would  not  waive  my  right  to  have  the  question 
decided  before  a  new  moderator  should  be  chosen.  I  did  so.  Af- 
terwards, my  seat  was  given  to  me.  I  was,  first,  a  member  of  a 
Congregational  church,  in  Norwich,  Connecticut,  where  I  was  born, 
the  only  church  in  the  parish.  I  was  licensed,  and  ordained,  by  the 
Rev.  John  M'Dowell,  and  his  co-presbyters  of  the  Presbytery  of 
New  Jersey.  Afterwards,  I  belonged  to  the  Synod  of  Pittsburg,  a 
thorough-going  Old  School  synod,  where  my  connexion  continued, 
until,  in  connexion  with  others,  my  presbytery  was  regularly  de- 
tached from  it,  by  the  General  Assembly,  in  erecting  the  Synod  of 
the  Western  Reserve. 

Counsel. — Are  you  not  now  acting  as  reporter  for  the  Journal  of 
Commerce? 

Witness. — I  could  not  with  propriety  say  that;  but  I  have  written 
a  few  letters  to  the  editors  of  that  journal,  during  the  progress  of 
this  trial,  one  of  those  gentlemen  being  a  personal  friend  of  mine. 

Counsel. — Are  the  reports  in  that  journal  from  your  pen? 

Witriess. — I  have  recently  seen  two  or  three  letters  published  in 
that  journal,  which  were  from  my  pen. 

Counsel. — Have  you  them  here  in  court? 

Witness. — I  have  not.  I  saw  them  in  the  reading-room  at  the 
Exchange. 

Mr.  Randall. — In  the  case  of  Duncan  against  the  Ninth  Presbyte- 
rian Church,  Dr.  Green,  one  of  the  respondents  in  this  case,  was 


256 

examined,  and  I  propose,  now,  to  read  his  testimony.  It  has  been 
intimated  that  an  objection  will  be  made.  I  offer  it  as  the  confes- 
sions of  a  party. 

Objection  was  made  by  the  counsel  for  the  respondents. 

Mr.  Randal/. — I  withdraw  the  offer. 

The  plaintiff's  here  offered  in  evidence,  as  rebuttinf?  the  testimony 
of  the  defendants,  the  minute  of  the  organization  in  Ranstead  courts 
as  contained  in  the  Old  School  Minutes  of  1838,  as  follows : 

The  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of  Ame- 
rica, met  agreeably  to  appointment,  in  the  Seventh  Presbyterian  Church,  in  the 
city  of  Philadelphia,  on  Thursday,  the  17th  day  of  May,  A.  D.  1838,  at  11  o'clock, 
A.  M.;  and  was  opened  with  a  sermon  by  tlie  Rev.  David  Elliott,  D.  D.,  the  mode- 
rator of  the  last  Assembly,  from  Isaiah  60,  1:  "Arise,  shine,  for  tbj'^  light  is  come, 
and  the  glory  of  the  Lord  is  risen  upon  tliee." 

After  the  sermon,  the  moderator  gave  notice  that  as  soon  as  the  benediction  was 
pronounced,  he  would  take  the  chair,  and  proceed  to  the  organization  of  the 
Assembly.  The  benediction  being  pronounced,  the  moderator  took  the  chair,  and 
having  opened  the  meeting  with  prayer,  called  upon  the  permanent  clerk  to  report 
the  roll. 

The  Rev.  William  Patton,  a  member  of  the  Third  Presbytery  of  New  York,  rose, 
and  asked  le^ve  to  ofl'er  certain  resolutions  which  he  held  in  his  hand. 

The  moderator  declared  the  request  at  that  time  to  be  out  of  order,  as  the  first 
business  was  the  report  of  the  clerks. 

Dr.  Patton  appealed  from  the  decision.  The  moderator  declared  the  appeal,  for 
the  reason  already  stated,  to  be  at  that  time  out  of  order.  Dr.  Patton  stated  that 
the  resolutions  related  to  the  formation  of  the  roll,  and  began  to  read  the  same:  but 
being  called  to  order,  took  his  seat. 

The  permanent  clerk,  from  the  Standing  Committee  of  Commissions,  reported 
that  the  following  persons,  present,  have  been  duly  appointed,  and  are  enrolled  as 
commissioners  to  this  General  Assembly,  and  laid  their  commissions  on  the  table> 
viz: 

[The  roll  follows.] 

The  Committee  of  Commissions  further  reported  that  the  Rev.  Robert  G.  Thomp- 
son, of  the  Presbytery  of  Bedford;  Rev.  Adam  Millar,  of  the  Presbytery  of  Mont- 
rose, and  Mr.  .Tames  Elliott,  a  ruling  elder  of  the  Presbytery  of  Richland,  have 
stated  to  the  committee  that  they  were  appointed  by  their  respective  presbyteries, 
but  have  not  their  commissions;  that  the  commission  of  Mr.  John  W.  Cunningham, 
a  ruling  elder  from  the  Presbytery  of  New  Castle,  wants  the  signature  of  the  mode- 
rator;  and  that  the  commission  of  Rev.  Ephraim  P.  Bradford,  of  the  Presbytery  of 
Londonderry,  wants  the  signature  of  the  clerk. 

They  further  reported  that  the  Rev.  David  R.  Preston,  and  Mr.  Thomas  Beard, 
a  ruling  elder,  appeared  before  the  committee  with  regular  commissions  from  the 
Presbytery  of  Greenbrier,  which  commissions  were  accompanied  with  an  attested 
extract  from  the  minutes  of  the  Synod  of  Virginia,  certifying  that  said  presbytery 
was  regularly  constituted  by  the  Synod  of  Virginia,  October  10th,  1837. 

The  documents  refeiTed  to  in  the  foregoing  report  of  the  informal  cases,  were 
laid  on  the  table  by  the  permanent  clerk. 

After  the  report  of  the  Committee  of  Commissions  had  been  read,  the  moderator 
stated  that  the  commissioners  whose  commissions  had  been  examined,  and  whose 
names  had  been  enrolled,  were  to  be  considered  as  members  of  this  Assembly ; 
and  added  that  if  there  were  any  commissioners  present  from  the  presbyteries  be- 
longing to  the  Presbyterian  Church  in  the  United  States  of  America,  whose  names 
had  not  been  enrolled,  then  was  the  time  for  presenting  their  commissions. 

Dr.  Mason  rose,  as  he  said,  to  offer  a  resolution  to  "  complete  the  roll,"  by  add- 
ing the  names  of  certain  commissioners  who,  he  said,  had  oflered  their  commissions 
to  the  clerks,  and  had  been  by  them  refused.  The  moderator  inquired  if  they 
were  from  presbyteries  belonging  to  the  Assembly  at  the  close  of  the  sessions  of 
last  year  ?  Dr.  Mason  replied  that  they  were  from  presbyteries  belonging  to  the 
Synods  of  Utica,  Geneva,  Genessee,  and  the  Western  Reserve.     The  moderator 


257 

then  stated  that  the  motion  was  out  of  order  at  this  time.  Dr.  Mason  appealed  from 
the  decision  of  the  moderator ;  which  appeal,  also,  the  moderator  declared  to  be 
out  of  order,  and  repeated  the  call  for  commissions  from  presbyteries  in  connexion 
with  the  Assembly. 

The  Rev.  Miles  P.  Squier,  a  member  of  the  Presbytery  of  Geneva,  then  rose 
and  stated  that  he  had  a  commission  from  the  Presbytery  of  Geneva,  which  he  had 
presented  to  the  clerks,  who  refused  to  receive  it,  and  that  he  now  offered  it  to 
the  Assembly,  and  claimed  his  rig'ht  to  his  seat.  The  moderator  inquired  if  the 
Presbytery  of  Geneva  was  within  the  bounds  of  the  Synod  of  Geneva.  Mr.  Squier 
replied  tliat  it  was.  The  moderator  said:  "Then  we  do  not  know  you,  sir,"  and 
declared  the  application  out  of  order.  Mr.  Cleaveland  then  rose  and  beg-an  to  read 
a  paper,  tlie  purport  of  which  was  not  heard,  when  tlie  moderator  called  him  to 
order.  Mr.  Cleaveland,  however,  notwithstanding-  the  call  to  order  was  repeated 
by  the  moderator,  persisted  in  the  reading.  During-  which,  the  Rev.  Joshua  Moore, 
from  the  Presbytery  of  Hunting-don,  presented  a  commission,  which  being-  examin- 
ed by  the  Committee  of  Commissions,  Mr.  Moore  was  enrolled,  and  took  his  seat. 

It  was  then  moved  to  appoint  a  Committee  of  Elections,  to  which  the  informal 
commissions  might  be  referred.  But  the  reading  by  Mr.  Cleaveland  still  continu- 
ing, and  the  moderator  having  in  vain  again  called  to  order,  took  his  seat,  and  the 
residue  of  the  Assembly  remaining  silent,  tlie  business  was  suspended  during  the 
short  but  painful  scene  of  confusion  and  disorder  which  ensued.  After  which,  and 
the  actors  therein  having  left  the  house,  the  Assembly  resumed  its  business. 

On  motion. 

The  cases  of  Messrs.  Thompson,  Millar,  Elliott,  Cunningham,  Bradford,  Preston, 
and  Beard,  and  the  documents  concerning  them,  were  referred  to  Messrs.  Culbert- 
son,  J.  L.  R.  Davies,  and  Hugh  Campbell,  as  a  Committee  of  Elections. 

The  Rev.  William  S.  Plumer  was  unanimously  elected  moderator;  and  the  Rev. 
Ellas  W.  Crane  was  unanimously  elected  temporary  clerk. 

The  Committee  of  Elections  reported  that  the  following  persons,  whose  cases 
had  been  submitted  to  them,  were  regularly  appointed  commissioners  to  this  As- 
sembly, and  recommended  that  they  be  severally  admitted  to  seats,  viz.  Rev.  Ro- 
bert G.  Thompson,  of  the  Presbytery  of  Bedford;  Mr.  James  Elliott,  ruling  elder  of 
the  Presbytery  of  Richland;  Mr.  John  W.  Cunningham,  ruling  elder  of  the  Presby- 
tery of  New  Castle;  the  Rev.  Ephraim  P.  Bradford,  and  Rev.  David  R.  Preston,  and 
Mr.  Thomas  Beard,  ruling  elder,  from  the  Pa-esbytery  of  Greenbrier;  they  further 
reported  that  the  Rev.  Adam  Millar,  of  the  Pi-esbytery  of  Montrose,  did  not  appear 
before  the  committee. 

The  case  of  the  commissioners  from  the  Presbytery  of  Greenbrier  was  referred 
back  to  the  Committee  of  Elections,  and  that  part  of  their  report  relative  to 
Messrs.  Thompson,  Elliott,  Cunningham,  and  Bradford,  was  adopted,  and  it  was 
ordered  that  their  names  be  inserted  in  the  roll.  These  commissioners  took  their 
seats. 

And  then  the  Assembly  adjourned  till  this  afternoon  at  5  o'clock. 

Concluded  with  prayer. 

Plaintiffs'  counsel  also  offered  the  whole  of  the  statistical  table 
appended  to  the  same  minutes,  occupying  forty  or  fifty  pages,  but 
without  reading;  and  then  read  extracts  from  the  unpublished 
manuscript  minutes  of  the  earlier  Assemblies,  to  prove  the  point  on 
which  evidence  had  before  been  offered  from  the  printed  minutes, 
viz.  that  it  has  been  customary,  in  the  Assembly,  to  determine  dis- 
puted rights  of  membership  before  the  choice  of  a  moderator. 

The  testimony  for  the  relators  here  closed. 

The  counsel  for  the  respondents  then  offered  in  evidence  the  New 
School  minutes  of  1838,  pp.  635-646,  as  contradictory  of  the  testi- 
mony adduced  b}'  the  relators. 

Mr.  Meredith  demanded  that  the  portions  of  those  minutes  which 
were  to  be  relied  on,  should  be  specified. 

Mr.  Huhbell. — The  whole  is  offered  as  contradictory  of  the  evi- 
dence for  the  relators. 

22* 


258 

Mr.  Meredith. — We  indicated  distinctly  the  portions  of  the  minutes 
of  the  other  party  on  which  we  should  rely,  and  deem  the  same 
course  requisite  on  the  part  of  the  opposite  counsel;  unless  the 
court  decide  that  the  whole  minutes  of  both  parties  shall  be  consi- 
dered in  evidence,  at  least,  so  far  as  the  counsel  shall  choose  to  use 
them. 

The  Court  decided  that  the  minutes  of  both  parties,  so  far  as  they 
were  relevant  to  the  case,  were  to  be  considered  as  now  in  evidence, 
large  portions  of  both  have  been  read  by  the  respective  parties.  If 
hereafter  any  portions  should  be  adverted  to  by  the  counsel  which 
seem  to  be  inadmissible,  the  Court  will  decide  what  portions  are  to 
be  admitted,  and  what  rejected. 

Mr.  Meredith. — We  are  content. 

The  following  are  the  minutes  particularly  adverted  to  by  the 
respondents'  counsel. 

The  General  Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America  met,  agreeably  to  appointment,  in  the  7th  Presbyterian  Church  in  the 
city  of  Piiiladelphia,  on  the  third  Thursday  of  May,  1838,  at  11  o'clock  A.  M.  and 
was  opened  with  a  sermon  by  the  Rev.  David  Elliott,  D.  D.  Moderator  of  tiie  last 
Assembly,  from  Isa.  Ix.  1:  "Arise,  shine,  for  thy  light  is  come,  and  the  glory  of 
the  Lord  is  risen  upon  thee." 

After  public  worship,  the  Moderator  of  the  last  Assembly  announced  from  the 
desk  that  immediately  after  the  benediction,  the  Moderator  would  take  the  chair 
on  the  floor  of  the  church,  and  the  Assembly  would  then  be  constituted. 

After  the  benediction,  the  Moderator  of  the  last  Assembly  took  the  chair  and 
opened  the  meeting  with  prayer. 

The  Rev.  William  Patton,  D.  D.  from  the  3d  Presbytery  of  New  \ork,  then 
rose,  and  asked  leave  to  offer  the  following  preamble  and  resolutions: 

"  Whereas  the  General  Assembly  of  1837  adopted  certain  resolutions  intended 
to  deprive  certain  presbyteries  of  the  right  to  be  represented  in  the  General  As- 
sembly ; and  whereas,  the  more  fully  to  accomplish  their  purpose,  the  said  As- 
sembly of  1837  did  require  and  receive  from  their  clerks  a  pledge  or  promise, 
that  they  would,  in  making  out  the  roll  of  commissioners  to  constitute  the  Gene- 
ral Assembly  of  1838,  omit  to  insert  therein  the  names  of  commissioners  from 
said  presbyteries ; — and  whereas  the  said  clerks,  having  been  requested  by  com- 
missioners from  the  said  presbyteries  to  receive  their  commissions  and  enter  their 
names  on  the  roll  of  the  General  Assembly  of  1838,  now  about  to  be  organized, 
have  refused  to  receive  and  enter  the  same  ; — Therefore 

[For  these  resolutions  see  page  85  of  this  report.] 

The  Moderator  declared  him  to  be  out  of  order,  and  refused  to  allow  them  to  be 
read.  Dr.  Patton  then  stated  that  he  was  very  desirous  to  have  them  put  and 
passed  upon  without  remark  or  debate.  The  moderator  again  declared  them  out 
of  order,  as  the  next  business  was  the  report  of  the  clerks  upon  the  roll.  Dr. 
Patton  then  appealed  from  the  decision  of  the  chair.  The  appeal  was  seconded, 
and  the  moderator  declared  the  appeal  to  be  out  of  order,  and  refused  to  put  it, 
and  directed  the  clerk  to  make  his  report  upon  the  roll.  Dr.  Patton  then  de- 
clared to  the  moderator  that  the  paper  he  wished  read  had  relation  to  form- 
ing the  roll.  The  moderator  then  stated  that  he  was  out  of  order  as 
the  clerk  was  on  the  floor ;  whereupon  the  moderator  was  reminded  by 
Dr.  Patton  that  he  had  the  floor  before  the  clerk.  The  moderator  directed  the 
clerk  to  proceed  with  the  report  on  the  roll,  and  Dr.  Patton  thereupon  took  his 
seat. 

The  report  of  the  clerks  of  the  last  Assembly  upon  the  roll  was  then  read  by 
the  Rev.  John  M.  Krebs,  one  of  the  Clerks  of  the  last  Assembly,  and  was  as  follows; 

[The  roll  follows.] 

The  reading  of  the  report  being  finished,  the  moderator  announced  that  if 
there  were  commissioners  from  any  presbyteries  of  the  Presbyterian  Church  who 


259 

had  not  been  enrolled,  then  was  the  propei-  time  to  make  application  to  have  their 
names  put  upon  the  roll. 

Thereupon  the  Rev.  Erskine  Mason,  D.  D.  from  the  Tliird  Presbytery  of  New 
York,  rose  and  offered  the  following'  resolution. 

"  liesolved,  That  the  roll  be  now  completed  by  adding  the  names  of  all  com- 
missioners now  present  from  the  several  presbyteries  within  the  bounds  of  the 
synods  of  Utica,  Geneva,  Genessee  and  the  Western  Reserve." 

And  stated  that  the  commissioners  from  the  presbyteries  therein  named  had 
offered  their  commissions  to  the  clerks,  who  had  refused  to  receive  them.  The 
moderator  asked  Dr.  Mason  if  they  were  from  presbyteries  connected  with  the 
Assembly  of  1837  at  the  close  of  its  session.  Dr.  Mason  replied  that  they  were 
from  presbyteries  within  the  bounds  of  the  synods  of  Utica,  Geneva,  Genessee  and 
the  Western  Reserve.  The  moderator  then  stated  that  they  could  not  be  received. 
Dr.  Mason  then  formally  tendered  the  commissions  of  commissioners  from 


THE  PUESBTTEKIES 

OF              MINISTERS. 

EinERS. 

Lorain, 

Daniel  W.  Lathrop, 

Henry  Brown, 

Geneva, 

Wm.  L.  Strong-, 

Zenas  Wheeler, 

Miles  P.  Squier, 

Wm.  B.  Cook, 

Genessee, 

Erastus  J.  GiUett, 
Wm.  Bridgman, 

Augustus  P.  Hascallj 

Oneida, 

Horace  P.  Boque, 
Joseph  Myers, 

Angelica, 

Asa  J.  Allen, 

Thompson  Bell, 

Maumee, 

J.  H.  Francis, 

Levi  Beebe, 

Watertown, 

Isaac  Brayton, 

Jason  Clark, 

Portage, 

George  E.  Pierce, 
Sherman  B.  Canfield, 

Cayuga, 

Salem  Town, 
Joseph  Esty, 

Ontario, 

Silas  C.  Brown, 

Hiram  Ashley, 

Rochester, 

Try  on  Edwai'ds, 
A.  G.  Hall, 

George  A.  Avery, 

Delaware, 

Daniel  Waterbury, 

D.  Penfield, 

Otsego, 

Joseph  W.  Paddock, 

David  H.  Little, 

Trumbull, 

Selden  Haynes, 

M.  Messer, 

Onondago, 

Hutchins  Taylor, 

Chemung, 

John  Frost, 

Huron, 

E.  P.  Salmon, 

Buffalo, 

Asa  T.  Hopkins, 

Jabez  Goodell, 

George  R.  Rudd, 

Horace  Allen, 

Grand  River, 

Ferris  Fitch, 

Niagara, 

Herman  Halsey, 

Cortland, 

Joseph  R.   Johnson, 

Chenango, 

John  B.  Hoyt, 

Frederic  Hotchkiss, 

Cleveland, 

Samuel  C.  Aikin, 

Stephen  Whitaker, 

Bath, 

E.  Everett, 

Daniel  S.  Benton, 

Tioga, 

J.  A.  Nasii, 

Elias  Hawlej-, 

And  demanded  that  they  be  put  upon  the  roll.  The  resolution  was  seconded. 
The  moderator  declared  it  out  of  order.  Dr.  Mason  then  said  that  with  the  great- 
est respect  for  the  chair,  he  must  appeal  from  that  decision.  The  appeal  was 
seconded.     The  moderator  declared  the  appeal  out  of  order,  and  refused  to  put  it. 

The  Rev.  Miles  P.  Squier,  from  the  Presbytery  of  Geneva,  then  rose  and  ad- 
dressed the  chair,  staling  that  he  had  a  commission  from  the  Presbytery  of  Gene- 
va, which  he  had  presented  to  the  clerks,  who  refused  to  receive  it,  and  he  de- 
manded his  right  to  his  seat  and  required  his  name  to  be  enrolled.  The  moderator 
asked  him  if  the  Presbytery  of  Geneva  was  within  the  Synod  of  Geneva.  Mr. 
Squier  repHed  that  it  was  within  the  bounds  of  the  Synod  of  Geneva.  The  mode- 
rator then  said  "  We  do  not  know  you,"  and  refused  the  demand,  declaring  it  out 
of  order. 

These  repeated  refusals  of  the  moderator  and  clerks  of  the  General  Assembly  of 
1837  to  perform  the  duties  of  their  respective  offices  in  the  organization  of  the 
General  Assembly  of  1838,  till  its  own  officers  should  be  appointed,  thus  impeding 
the  constitutional  progress  of  business,  the  Rev.  John  P.  Cleaveland,  of  the  Pres- 


260 

bytery  of  Detroit,  rose  and  stated  in  substance  as  follows: — that  as  the  commission- 
ers to  the  General  Assembly  for  1838,  from  a  larjje  number  of  presbyteries,  had 
been  refused  their  seats  ;  and  as  we  had  been  advised  by  counsel  learned  in  the 
law,  that  a  constitutional  org'anization  of  tlie  Assembly  must  be  secured  at  this 
time  and  in  this  place,  he  trusted  it  would  not  be  considered  as  an  act  of  discovu'- 
tesy,  but  merely  as  a  matter  of  necessity,  if  we  now  proceed  to  organize  the  Gene- 
ral Assembly  for  1838,  in  the  fewest  words,  the  shortest  time,  and  with  the  least 
interruption  practicable.  He  therefore  moved  that  Dr.  Beman,  from  the  Presby- 
tery of  Troy,  be  moderator  to  preside  till  a  new  moderator  be  chosen.  The  mo- 
tion was  seconded  by  the  Rev.  Baxter  Dickinson  from  the  Presbytery  of  Cincin- 
nati, and  no  other  person  being-  nominated,  the  Rev.  Dr.  Beman  was  unanimously 
appointed  such  moderator. 

It  was  then  moved  and  seconded  that  the  Rev.  Erskine  Mason,  D.  D.  from  the 
3d  Presbytery  of  New  York,  and  tlie  Rev.  E.  W.  Gilbert  from  the  Presbytery  of 
Wilmington,  be  clerks  pro  tempore;  and  no  otlier  persons  being  put  in  nomina- 
tion, they  were  unanimousl}^  appointed. 

The  following  is  the  roll  of  the  General  Assembly  as  completed  by  the  clerks: 

[The  roll  here  follows.] 

The  Rev.  Samuel  Fislier,  D.  D.  of  the  Presbytery  of  Newark,  was  nominated  as 
moderator  of  the  General  Assembly,  and  no  other  person  being  put  in  nomination, 
he  was  chosen  by  a  very  large  majority.  The  Rev.  Dr.  Beman  thereupon  an- 
nounced to  Dr.  Fisher  that  he  was  duly  elected  the  moderator  of  the  General  As- 
sembly; and  on  leaving  the  chair,  informed  liim  that  he  was  to  be  governed  in  his 
office  by  the  rules  of  the  General  Assembly  hereafter  to  be  adopted. 

The  Rev.  Erskine  Mason,  D.  D.  was  then  chosen  stated  clerk,  and  the  Rev.  E. 
W.  Gilbert  permanent  clerk  of  the  General  Assembly. 

The  following  notice  had  been  previously  delivered  to  the  Rev.  Dr.  Beman; 

"  Resolution  of  the  Trustees  of  the  7th  Presbyterian  Church,  adopted  May  7th, 
1838. 

Resolved,  Tliat  the  General  Assembly  of  the  Presbyterian  Church,  which  is  to 
convene  in  Philadelphia  on  the  17th  inst.  and  which  shall  be  organized  under  the 
direction  of  the  moderator,  and  clerks,  officiating  during  the  meeting  of  the  last 
Assembly,  shall  have  the  use  of  the  Seventl\  Presbyterian  Church  during  their  ses- 
sions, to  the  exclusion  of  every  other  Assembly  or  Convention  which  may  be  organ- 
ized during  the  same  period  of  time.  (Signed)  JAMES  SCHOTT, 

President  of  the  Board  of  Trustees." 

It  was  moved  and  seconded  that  the  General  Assembly  now  adjourn  to  meet 
forthwith  in  the  lecture  room  of  the  First  Presbyterian  Church  in  this  city.  The 
motion  to  adjourn  was  carried  unanimously. 

The  moderator  then  audibly  announced  that  the  General  Assembly  was  so  ad- 
journed, and  gave  notice  that  any  commissioners  who  had  not  presented  their 
Commissions  should  do  so  at  the  First  Presbyterian  Church. 

The  Assembly  being  again  met  at  the  lecture  room  of  the  First  Presbyterian 
Church,  Dr.  Patton  again  offered  his  preamble  and  resolutions,  as  follows,  which 
were  unanimously  adopted: 

[See  page  258  as  before.] 

Commissions  were  called  for,  and  committed  to  the  hands  of  the  stated  and 
permanent  clerks. 

Adjourned  to  meet  in  this  place  at  4  o'clock,  P.  M. 

Concluded  with  prayer. 

Respondents'  counsel  here  alluded  to  a  reference  made  in  open- 
ing their  case,  to  certain  principles  established  by  the  Form  of 
Government,  and  to  some  facts  exhibited  by  the  minutes  of  the 
Assembly  in  different  years,  the  documents  exhibiting  which  were 
not  fully  read  at  the  time;  and  the  reading  was  now  waived,  with 
the  understanding  that  they  would  be  adverted  to  in  the  argument 
as  the  counsel  should  think  proper. 

Judge  Rogers  remarked,  that  he  considered  the  whole  of  the  book 
containing  the  Form  of  Government,  the  minutes  of  the  Assembly 
for  the  several  years  which  had  been  adverted  to  bv  counsel  on  both 


261 

sides,  and  the  book  called  the  Digest,  as  in  evidence,  and  subject  to 
the  use  of  the  counsel  in  their  argument. 

Such  parts  of  the  documents  at  this  time  alluded  to  by  the  coun- 
sel for  the  respondents,  as  were  subsequently  adverted  to  in  their 
arguments,  and  which  do  not  appear  on  previous  pages  of  this 
report,  are  here  subjoined. 

Farm  of  Government,  pp.  354-5. 
CHAPTER  IX. — Op  the  CHtrncH  Session. 

I.  The  church  session  consists  of  the  pastor  or  pastors,  and  ruling'  elders  of  a 
])articular  congregation. 

II.  Of  this  judicatory,  two  elders,  if  there  be  as  many  in  the  con^egation,  with 
the  pastor,  shall  be  necessary  to  constitute  a  quorum. 

III.  The  pastor  of  the  congregation  shall  always  be  the  moderator  of  the  session^ 
except  when,  for  prudential  reasons,  it  may  appear  advisable  that  some  other  min- 
ister should  be  invited  to  preside;  in  which  case  the  pastor  may,  with  the  concur- 
rence of  the  session,  invite  such  other  minister  as  they  may  see  meet,  belonging  to 
the  same  presbytery,  to  preside  in  that  case.  The  same  expedient  may  be  adopted 
in  case  of  the  sickness  or  absence  of  the  pastor.        *        *        * 

Pp.  364-5. 

CHAPTER  XII. — Of  the  General  Assembly. 

[For  sections  I.  II.  III.  of  this  chapter,  see  back,  page  30 ;  and  for  section  VIII. 
see  page  44.] 

IV.  The  General  Assembly  shall  receive  and  issue  all  appeals  and  references, 
which  may  be  regularly  brought  before  them  from  the  inferior  judicatories.  They 
shall  review  the  records  of  every  synod,  and  approve  or  censure  them:  they  shall 
give  their  advice  and  instruction  in  all  cases  submitted  to  them  in  conformity  with 
the  constitution  of  the  church  ;  and  thej'  shall  constitute  the  bond  of  union,  peace, 
correspondence,  and  mutual  confidence,  among  all  our  churches. 

V.  To  the  General  Assembly  also  belongs  the  power  of  deciding  all  controversies 
respecting  doctrine  and  discipline;  of  reproving,  warning,  or  bearing  testimony 
against  error  in  doctrine,  or  immorality  in  practice,  in  any  church,  presbytery,  or 
synod ;  of  erecting  new  synods  when  it  may  be  judged  necessary;  of  superintend- 
ing the  concerns  of  the  whole  church  ;  of  corresponding  with  foreign  churches,  on 
such  terms  as  may  be  agreed  upon  by  the  Assembly  and  the  corresponding  body  ; 
of  suppressing  schismatical  contentions  and  disputations ;  and,  in  general,  of  recom- 
mending and  attempting  reformation  of  manners,  and  the  promotion  of  charity, 
truth,  and  holiness,  through  all  the  churches  under  their  care. 

VI.  Before  any  overtures  or  regulations  proposed  by  the  Assembly  to  be  esta- 
lished  as  constitutional  rules,  shall  be  obligatory  on  the  churches,  it  shall  be  neces- 
sary to  transmit  them  to  all  the  presbyteries,  and  to  receive  the  returns  of  at  least 
a  majority  of  them,  in  writing,  approving  thereof. 

VII.  The  General  Assembly  shall  meet  at  least  once  in  every  year.  On  the  day 
appointed  for  that  purpose,  the  moderator  of  the  last  Assembly,  if  present,  or  in 
case  of  his  absence,  some  other  minister,  shall  open  the  meeting  with  a  sermon, 
and  preside  until  a  new  moderator  be  chosen.  No  commissioner  shall  have  a  right 
to  deliberate  or  vote  in  the  Assembly,  until  his  name  shall  liave  been  enrolled  by 
the  clerk,  and  his  commission  examined  and  filed  among  the  papers  of  the  As- 
sembly. 

Pp.  366-8. 

CHAPTER  XIII. — Of  Electing  and  Oedaining  Ruling  Eldeus  and  Deacons. 

n.  Eveiy  congregation  shall  elect  persons  to  the  office  of  ruling  elder,  and  to 
the  office  of  deacon,  or  either  of  them,  in  the  mode  most  approved  and  in  use  in 
that  congregation.  But  in  all  cases  the  persons  elected  must  be  male  members  in 
full  communion  in  the  ciiurch  in  which  tliey  are  to  exercise  their  office. 

III.  When  any  person  shall  have  been  elected  to  either  of  these  offices,  and  shall 
have  declared  his  willingness  to  accept  tliereof,  he  shall  be  set  apart  in  the  follow- 
ing manner: 

IV.  After  sermon,  the  minister  shall  state,  in  a  concise  manner,  the  warrant  and 


262 

nature  of  the  office  of  ruling  elder  or  deacon,  together  with  the  character  proper 
to  be  sustained,  and  the  duties  to  be  fulfilled  by  the  officer  elect:  having  done  this, 
he  shall  propose  to  the  candidate,  in  the  presence  of  the  congregation,  the  follow- 
ing questions,  viz : 

1.  Do  you  believe  the  Scriptures  of  the  Old  and  New  Testaments  to  be  the  word 
of  God,  the  only  infallible  rule  of  faith  and  practice? 

2.  Do  you  sincerely  receive  and  adopt  the  confession  of  faith  of  this  church,  as 
containing  the  system  of  doctrine  taught  in  the  Holy  Scriptures? 

3.  Do  you  approve  of  the  government  and  discipline  of  the  Presbyterian  Church 
in  these  United  States? 

4.  Do  you  accept  the  office  of  ruling  elder  (or  deacon,  as  the  case  may  be,)  in 
this  congregation,  and  promise  faithfully  to  perform  all  the  duties  thereof? 

5.  Do  you  promise  to  study  the  peace,  unity  and  purity  of  the  Church?  *     *     * 
VI.  The  offices  of  ruling  elder  and  deacon  are  both  perpetual,  and  cannot  be  laid 

aside  at  pleasure.  No  person  can  be  divested  of  either  office  but  by  deposition. 
Yet  an  elder  or  deacon  may  become,  by  age  or  infirmity,  incapable  of  performing 
the  duties  of  his  office ^  or  he  may,  though  chargeable  with  neither  heresy  nor  im- 
morality, become  unacceptable,  in  his  official  character,  to  a  majority  of  the  con- 
gregation to  which  he  belongs.  In  either  of  these  cases,  he  may,  as  often  happens- 
with  respect  to  a  minister,  cease  to  be  an  acting  elder  or  deacon. 

Pp.  386-7. 
CHAPTER  XIX.— Of  MerERATOKS. 

I.  It  is  equally  necessary  in  the  judicatories  of  the  church,  as  in  other  assem- 
blies, that  there  should  be  a  moderator  or  president ;  that  the  business  may  be  con- 
ducted with  order  and  despatch. 

II.  The  moderator  is  to  be  considered  as  possessing,  by  delegation  from  the 
whole  body,  all  authority  necessary  for  the  preservation  of  order;  for  convening 
and  adjourning  the  judicatory;  and  directing  its  operations  according  to  the  rules 
of  the  church.  He  is  to  propose  to  the  judicatory  every  subject  of  deliberation 
that  comes  before  them.  He  may  propose  what  appears  to  him  the  most  regular 
and  speedy  way  of  bringing  any  business  to  issue.  He  shall  prevent  the  members 
from  interrupting  each  other;  and  require  them,  in  speaking,  always  to  address  the 
chair.  He  shall  prevent  a  speaker  from  deviating  from  the  subject,  and  from  using 
personal  reflections.  He  shall  silence  those  who  refuse  to  obey  order.  He  shall 
prevent  members  who  attempt  to  leave  the  j  udicatory  without  leave  obtained  from 
him.  He  shall,  at  a  proper  season,  when  the  deliberations  are  ended,  put  the  ques- 
tion and  call  the  votes.  If  the  judicatory  be  equally  divided,  he  shall  possess  the 
casting  vote.  If  he  be  not  willing  to  decide,  he  shall  put  the  question  a  second 
time;  and  if  the  judicatory  be  again  equally  divided,  and  he  decline  to  give  his  vote, 
the  question  shall  be  lost.  In  all  questions  he  shall  give  a  concise  and  clear  state 
of  the  object  of  the  vote;  and  the  vote  being  taken,  shall  then  declare  how  the 
question  is  decided.  And  he  shall  likewise  be  empowered,  on  any  extraordinary 
emergency,  to  convene  the  judicatory,  by  his  circular  letter,  before  the  ordinary 
time  of  meeting. 

III.  The  moderator  of  the  presbytery  shall  be  chosen  from  year  to  year,  or  at 
every  meeting  of  the  presbytery,  as  the  presbytery  may  think  best.  The  modera- 
tor of  the  synod,  and  of  the  General  Assembly,  shall  be  chosen  at  each  meeting  of 
those  judicatories:  and  the  moderator,  or,  in  case  of  his  absence,  another  member 
appointed  for  the  purpose,  shall  open  the  next  meeting  with  a  sermon,  and  shall 
hold  the  chair  till  a  new  moderator  be  chosen. 

Minutes  o/1826,  pages  37-40. 

The  committee  to  whom  was  recommitted  the  report  on  the  propriety  of  making 
certain  alterations  in  the  existing  rules  which  govern  the  proceedings  of  the  Gene- 
ral Assembly,  and,  if  necessary,  alterations  in  the  constitution  of  our  Church,  re- 
commended: *  *  ♦  * 

7.  That  in  the  Form  of  Government,  chap.  xii.  sect.  7,  the  words  "  publicly  read" 
should  be  exchanged  for  the  word  "  examined."  In  favour  of  this  amendment,  the 
committee  stated,  that  probably  much  time,  which  is  now  occupied  by  the  whole 
Assembly  in  having  the  commissions  publicly  read,  might  be  saved,  and  stricter 
order  be  observed,  by  the  adoption  of  rules  of  the  following  import:  That  imme- 
diately after  the  opening  of  the  General  Assembly  and  the  constituting  of  the  house, 
a  comniittee  of  commissions  be  appointed,  with  instructions;  and  that  the  house  ad- 


263 

journ  till  the  usual  hour  in  the  afternoon.  That  the  committee  of  commissions  be 
instructed  to  examine  the  commissions,  and  to  report  to  the  Assembly  immediately 
after  its  opening  in  the  afternoon,  on  those  commissions  which  are  unobjectionable, 
and  on  those,  if  such  there  be,  which  are  materially  incorrect,  or  that  are  otherwise 
objectionable:  That  those  whose  commissions  are  unobjectionable,  immediately 
take  their  seats  as  members,  and  proceed  to  business;  and  that  the  first  act  be  the 
appointment  of  a  committee  of  elections,  to  which  shall  be  referred  all  the  informal, 
or  otherwise  objectionable  commissions,  with  instructions  to  report  thereon  as  soou 
as  practicable.  *  *  *  * 

It  was  also  resolved,  that  so  soon  as  the  alteration  proposed  in  the  7th  item  above 
enumerated,  shall  appear  to  have  been  constitutionally  adopted  by  the  presbyteries, 
the  following  rules  of  the  Assembly  shall  be  in  force. 

[For  these  rules,  see  pp.  174-5  of  this  report.] 

The  respondents'  counsel  offered  the  deposition  of  Rev.  Eliphalet 
Nott,  D.  D.,  dated  February  20,  1839.  The  counsel  lor  the  relators 
objected  to  portions  of  the  deposition,  as  relating  to  nfiatters  respect- 
ing which  testimony  on  their  behalf  had  been  peremptorily  excluded 
by  the  Court,  at  the  instance  of  the  opposite  counsel,  which  decision 
of  the  Court  had  been  acquiesced  in  by  the  counsel  for  the  relators. 

The  Court  read  the  deposition,  and  decided  that  the  parts  relating 
to  occurrences  at  the  organization  were  admissible,  but  that  other 
portions  were  inadmissible. 

Mr.  Huhhell. — Will  your  honour  please  to  note  an  exception  to 
this  decision.  We  withdraw  the  offer  of  the  part  admitted,  being 
unwilling  to  present  that  without  the  other. 

Minutes  of  1827,  p.  152. 
The  committee  to  whom  was  referred  the  report  of  the  committee  on  the  returns 
of  the  presbyteries  in  relation  to  the  proposed  alterations  and  amendments  of  the 
constitution,  that  they  might  report  what  ought  to  be  done  in  consequence  of  the 
state  of  these  returns,  made  the  following  report,  viz.  That  there  are  connected 
with  the  Assembly,  eighty-eight  presbyteries:  forty-five,  therefore,  are  necessary 
to  make  any  alteration  in  the  constitution  of  the  Church.  *  *  * 

In  relation  to  No.  7,  of  the  proposed  amendments  to  the  Form  of  Government,  it 
appears  that  fifty-three  presbyteries  have  voted  in  favour  of  the  alteration,  and  thir- 
teen against  it.  Wherefore,  resolved,  that  the  proposed  amendment,  viz.  That  in 
the  Form  ol'  Government,  chap.  xii.  sect.  7,  the  words  "publicly  read,"  should  be 
exchanged  for  the  word  "  examined,"  be,  and  the  same  is  hereby  adopted  as  a  part 
of  the  constitution  of  this  church. 

Minutes  of  1829,  p.  384. 
Resolved,  That  the  permanent  and  stated  clerks  be,  and  they  hereby  are  appoint- 
ed a  standing  committee  of  commissions:  and  that  the  commissioners  to  future  As- 
semblies hand  their  commissions  to  said  committee,  in  the  room  in  which  the  As- 
sembly shall  hold  its  sessions,  on  the  morning  of  the  day  on  which  the  Assembly 
opens,  previous  to  11  o'clock;  and  further,  that  all  commissions  which  may  be  pre- 
sented during  the  sessions  of  the  Assembly,  instead  of  being  read  in  the  house,  shall 
be  examined  by  said  committee,  and  reported  to  the  Assembly. 

Same  Minutes,  p.  518. 

The  regulations  of  the  Assembly,  on  the  subject  of  statistical  reports,  are  sub- 
joined.    It  is  required — 

1.  That  the  forms  of  sessional  and  presbytcrial  reports,  sent  down  in  the  minutes, 
be  strictly  observed.  Deviation  from  these  frequently  requires  the  st:ited  clerk  of 
the  General  Assembly  to  copy  the  whole  report,  before  it  can  be  sent  to  the  press. 

2.  That  in  the  sessional  report,  the  pastor  or  session  be  required  to  insert  in  the 
column  headed  ".Missionary  Funds,"  all  sums  of  money  collected,  or  procured  to 
be  collected  by  said  pastor  or  session  from  the  congregation  under  his  and  their 
care  for  any  evangelical  mission,  whether  foreign  or  domestic;  and  p.irticularly  all 
sums  collected  for  the  Board  of  Missions  under  the  care  of  the  General  Assembly, 


264 

for  the  American  Home  Missionary  Society,  and  for  the  American  Board  of  Com- 
missioners for  Foreign  Missions;  that  under  the  caption  of  "  Commissioners'  Fund," 
be  returned  all  moneys  collected  for  defraying  the  expenses  of  commissioners  to 
the  General  Assembly,  whether  transmitted  to  the  treasurer  of  the  trustees  of  the 
General  Assembly,  or  paid  by  the  presbytery  itself  to  its  own  commissioners;  that 
under  the  head  of  "  Theological  Seminary  Funds,"  be  stated  all  funds  collected  for 
any  theological  seminarv  under  the  care  of  the  General  Assembly,  or  under  the  care 
of  any  synod  belonging  to  said  Assembly;  and  that  under  the  caption  of  "  Education 
Funds,"  be  returned  all  funds  collected  for  promoting  the  charitable  and  religious 
education  of  persons  in  Sabbath  schools;  and  especially  all  money  collected  for  the 
education  of  poor  and  pious  youth,  in  academies,  colleges,  or  theological  semina- 
ries, with  a  view  to  their  becoming  ministers  of  the  gospel. 

Rev.  Henry  A.  Boardman,  re-called  by  defendants,  said:  I  have 
heard  the  testimony  of  the  witnesses  this  morning,  in  regard  to  the 
noise  made  by  the  Old  School  party.  Their  statements  are  alto- 
gether counter  to  my  own  recollection,  and,  as  to  myself,  are  en- 
tirely unfounded.  To  the  best  of  my  recollection,  there  was  no 
stamping  or  scraping  with  the  feet  in  my  neighbourhood,  or  any 
other  indecorous  conduct.  There  may  have  been  one  or  two  calls 
to  order,  but  the  calls  came  chiefly  from  the  moderator,  and  those 
in  his  vicinity.  I  heard  nothing  of  the  remarks  of  Mr.  Gemmill, 
that  this  was  prettv  conduct  for  ministers  of  the  gospel. 

Rev.  Wm.  W.  Phillips,  re-c&Wed  by  defendants,  said:  Mr.  Board- 
man  sat  in  the  same  pew  with  me,  or  one  adjoining.  I  ain  certam 
that  he  made  no  noise,  and  there  was  certainly  nothing  unbecommg 
in  his  manner.  I  recollect  no  scraping  or  stamping  in  our  vicinity. 
There  were  calls  to  order,  in  which  I  joined.  I  recollect  at  some 
time  during  the  proceedings  of  the  New  School  party,  I  think  it 
was  when  they  were  leaving  the  church,  Mr.  Boardman  remarked 
to  me,  "  How  true  it  is,  that  whom  God  has  determined  to  destroy, 
he  first  makes  mad."     I  think  he  did  not  use  the  Latin  words. 

Hon.  Walter  Lowrie,  re-called  bv  the  respondents,  said :  I  did  not 
observe  the  position  of  Mr.  Boardman,  at  all.  From  his  account 
of  it  I  think  I  must  have  been  in  the  pew  adjoining  his.  I  sat  next 
the  door  of  the  pew.  I  heard  no  coughing  in  my  neighbour- 
hood, no  legislative  coughing.  There  was  no  indecorum  m  my 
neighbourhood  that  I  perceived,  and  no  calls,  excepting  calls  to 

order.  ,  ^     ,  t      •  i 

Hugh  Auckincloss,  Esq.,  re-called  by  defendnnts.  I  neither  saw 
nor  heard  any  stamping,  scraping  or  rubbing  in  that  vicinity.  All 
in  that  part  of  the  house  behaved  with  perfect  propriety. 

Rev.  John  M.  Krehs,  re-called  by  defendants,  at  his  own  request, 
said :  I  omitted  one  point  in  giving  my  testimony.  Dr.  Mason  has 
stated,  that  he  heard  the  name  of  John  Boynton  from  my  lips,  and 
was  surprised  at  it,  as  he  was  not  present.  No  commission  with 
his  name  upon  it  was  handed  to  me.  It  was  not  on  my  roll,  and  I 
never  uttered  it. 

In  regard  to  Mr.  Joshua  Moore,  I  wish  also  to  explain  in  my  tes- 
timony.°  I  said,  that  the  minute  was  inaccurate  in  regard  to^the 
period  when  he  presented  his  commission,  and  was  enrolled.  The 
fact  in  this  case  is,  that  an  interval  of  some  time  occurred  between 
the  time  of  his  first  appearing  in  the  Assembly  and  his  actual  pre- 
sentation of  his  commission. 

The  testimony  here  closed,  and  the  court  adjourned. 


265 

Saturday,  March  IGtfi. 
The  testimony  on  both  sides  having  closed  on  the  previous  day, 
the  Court  announced  at  the  opening  this  morning,  that  the  case  was 
ready  for  the  arguments  of  counsel,  if  they  wished  to  address  the 
jury.  According  to  previous  arrangement  among  the  counsel,  Mr. 
Meredith  was  to  open,  and  Mr.  Wood  to  close  for  the  relators;  and 
Mr.  Preston  to  open,  and  Mr.  IngersoU  to  close  for  the  respond- 
ents.    The  respective  argunients  are  here  subjoined. 

ARGUMENT  OF  WILLIAM  M.  MEREDITH,  ESQ. 

Commenced  Saturday  Morning,  March  16th,  and  closed  Monday,  March  18th. 

May  it  please  your  Honour, — Gentlemen  of  the  Jury:  This  is  an  ac- 
tion brought  in  the  name  of  the  Commonwealth  of  Pennsylvania,  at 
the  relation  of  James  Todd  and  others,  against  the  respondents 
Ashbel  Green  and  others,  to  try  the  titles  of  the  respective  par- 
ties. It  is  on  many  accounts  important  that  you  should  obtain  a 
correct  understanding  of  the  case  in  order  that  you  may  render  a 
righteous  decision.  This  decision  you  are  bound  to  render, and  I  have 
no  doubt  will  be  disposed  to  do  so.  In  arriving  at  your  conclusions 
in  this  case,  you  are  to  be  guided  by  the  principles  of  common  law 
and  common  sense.  So  clearly  have  the  great  principles  of  the 
common  law  been  defined  by  the  ablest  jurists,  that  there  will  be 
little  difficulty  in  exhibiting  them  to  the  satisfaction  of  the  jury. 

I  shall,  I  can  assure  you,  make  no  points  of  law  in  relation  to 
this  case,  but  such  as  are  absolutely  necessary  to  a  correct  under- 
standing of  the  principles  involved  in  it.  The  law,  gentlemen,  is 
perfectly  clear  in  regard  to  the  questions  which  you  are  to  deter- 
mine. But  on  this  subject  it  is  the  prerogative  of  the  court  to 
inform  you.  The  controversy  in  relation  to  which  you  are  to  de- 
cide, is  one  which  excites  unusual  interest  in  the  community.  The 
high  character  and  standing  of  the  parties  to  this  suit  invest  it 
with  an  interest  of  no  ordinary  character.  The  fact  that  it  involves 
questions  connected  with  the  religious  rights,  interests  and  feelings 
of  a  large  denomination  of  Christians,  naturally  and  necessarily 
increases  the  interest  felt  among  the  people  on  the  subject.  The 
intensity  of  the  interest  in  this  case,  has  been  manifested  by  the 
large  number  of  respectable  and  intelligent  men,  who  have  filled 
the  room  from  day  to  day,  for  nearly  two  weeks,  during  the  deve- 
lopment of  the  evidence. 

I  could  wish  that  such  cases  as  this,  involving  controversy  among 
religionists  were  less  frequent  than  they  are.  Many  such  have  oc- 
curred and  doubtless  others  will  occur,  which  will  have  to  be  de- 
cided by  our  courts  of  justice.  This  must  be  expected  while  the 
professors  and  ministers  of  religion  are  so  imperfectly  imbued  with 
the  spirit  of  the  Saviour,  and  among  them  are  found  men  obstinately 
bent  on  carrying  out  their  own  determinations,  sacrificing  in  their 
accomplishment  that  charity,  which  is  the  glory  of  their  religion. 

I  wish  you,  however,  while  engaged  in  the  consideration  of  this 
case,  to  recollect  that  this  suit  has  been  occasioned  by  the  violence 
23 


266 

of  a  party,  which  has  unjustly  accused  the  relators  of  having,  by 
usurpation,  attempted  the  exercise  of  a  control  in  the  church  to 
which  they  are  not  entitled.  The  acts  of  excision,  of  which  you 
have  heard,  during  the  development  of  the  testimony,  were  the 
primary  cause  which  led  to  the  institution  of  this  suit.  Those 
acts  of  the  party  in  the  church,  I  need  hardly  tell  you  are  unjust, 
oppressive  and  tyrannical.  That  you  may  understand  the  position 
of  the  relators  in  this  case,  I  must  remind  you,  and  this  I  wish  you 
not  to  forget,  that  we  are  not  the  party  which  undertakes  to  sit  in 
judgment  on  our  brethren  and  condemn  without  a  trial.  We  are 
not  the  party  claiming  to  be  Presbyterians  to  the  exclusion  of 
others  asserting  the  same  claim.  Those  whom  I  here  represent 
are  Presbyterians,  and  claim  to  be  such,  but  they  do  not  deny  that 
others  are  also  Presbyterians.  We  set  up  no  claim  to  possess  ex- 
clusively the  keys  of  the  church.  We  are  not  the  party,  which  at- 
tempts the  confiscation  of  the  property  of  another  portion  of  the 
church,  and  claims  for  itself  the  exclusive  enjoyment  of  the  whole. 
But  we  desire  to  enjoy  our  rights,  to  stand  as  we  have  heretofore 
stood,  on  equality  with  those  who  have  attempted  to  exercise  an 
usurped  arbitrary  power  over  us.  To  the  disgrace  of  Christians, 
a  party  has  arisen  in  the  Presbyterian  Church,  which  has  under- 
taken to  exclude  their  brethren,  without  citation,  without  trial,  and 
consequently,  without  conviction  of  heresy  or  any  crime  whatever. 

The  question  in  regard  to  property,  large  as  is  the  amount  in- 
volved, is  one  to  us  of  comparatively  little  consequence.  I  would 
not  have  made  the  allusion  which  I  have  to  that  subject,  but  to  dis- 
abuse your  minds  of  the  prejudice  which  it  has  been  unjustly  at- 
tempted to  excite  against  us.  In  the  progress  of  the  spirit  of  perse- 
cution and  misrule,  which  in  1837  was  consummated  by  the  sun- 
dering of  the  Presbyterian  Church,  there  has  been  much  crimination 
and  recrimination,  with  the  rehearsal  of  which,  however,  I  will  not 
detain  you.  Of  these  odious  measures,  the  acts  of  excision,  as  they 
have  been  called,  I  have  no  doubt  that  our  friends  on  the  other  side 
are,  by  this  time,  heartily  ashamed. 

Gentlemen,  I  do  not  ask  of  you  a  verdict  in  our  favour  unless  you 
are  fully  satisfied  that  our  rights  have  been  trampled  on,  and  that 
the  property  of  the  church  has  been  unjustly  siezed  by  the  ruthless 
violence  of  a  party. .  The  attempt  has  been  made  to  persuade  you, 
in  the  opening  of  the  opposite  counsel  and  by  testimony  which  he  at- 
tempted to  introduce,  that  on  the  subject  of  property,  the  excinding 
party  were  willing  to  do  justly  and  even  liberally  by  us;  that  they 
were  willing  to  divide  equally  with  us.  That  you  may  understand 
their  position  in  this  respect,  it  is  proper  that  your  attention  should 
be  turned  to  the  propositions  made  on  that  subject  at  the  meeting 
of  the  General  Assembly  of  1837.  The  minutes  of  that  Assembly 
contain  a  correspondence,  which  has  been  given  in  evidence,  be- 
tween the  two  portions  of  the  celebrated  committee  of  ten,  a  com- 
mittee appointed  on  the  motion  of  the  leader  of  the  Old  School 
party,  the  Rev.  Robert  J.  Breckinridge,  of  Baltimore,  for  the  pur- 
pose of  efl^ecting  an  amicable  division  of  the  Presbyterian  Church. 
The  correspondence  alluded  to,  exhibits  tl  c  propositions  of  the  de- 


267      - 

fendants  in  this  case  for  a  division  of  the  church.     It  shows  that 
they  proposed,  that  the  theological  seminaries  and  other  public 
property  of  the  church,  should  be  retained  by  the  Old  School  party. 
True,  they  were  willing  that  if  any  portion  of  the  property  could 
consistently  with  the  will  of  the  donors  be  given  to  any  who  were 
not  Presbyterians,  which  name  they  denied  to  us,  such  portion  they 
would  equally  divide  with  the  New  School.     In  other  words,  they 
would  consent  to  our  having  a  small  fragment  of  that  which  was 
already  in  our  possession,  and  to  which  our  right  was  equally  in- 
contestible  with  theirs.     Coupled  with  this,  was  their  proposition, 
claiming  to  retain  to  themselves  exclusively  and  denying  entirely 
to  us,  the  succession  of  the  Presbyterian  Church.     On  such  terms, 
and  such  only,  would  they  consent  to  the  amicable  division,  which 
themselves   proposed.     This   circumstance   alone,  is   sufficient  to 
stamp  with  opprobrium  their  whole  proceedings  in  this  business. 
Their  propositions  in  relation  to  the  church  property,  and  to  the 
succession,  were  couched  in  language  calculated  to  deceive  the 
unwary;  but  the  necessary  consequence  of  acceding  to  these  pro- 
positions, as  you,  gentlemen,  will  readily  perceive,  would  have  been 
at  once  to  make  us  seceders  from  the  church  of  our  fathers,  and 
voluntarily  to  exclude  ourselves  from  all  claim  to  the  property  of 
that  church.     About  the  property  itself  we  care  little.     We  would 
cheerfully  relinquish  all  participation  in  its  benefits,  were  that  the 
only  subject  involved  in  the  controversy.     But  we  will  not  consent 
without  a  struggle  to  be  unjustly  branded  as  heretics,  or  seceders 
from  the  church  to  whose  constitution  and  principles  we  claim  to 
adhere,  at  least  as  closely  as  those  who  seek  to  exclude  us.     Extra- 
ordinary as  it  may  seem,  after  what  has  been  attempted  to  be 
shown  on  the  other  side,  the  proposition  for  a  division  of  the  church 
came  from  the  Old  School  party.   The  proposition  for  a  committee 
for  this  purpose  came  from  them.     They  proposed  the  terms,  as  I 
have  shown  you,  on  which  such  a  division  might  be  made.     But 
this  is  not  all.     They  determined  on  effecting  the  division  at  all 
hazards.     If  they  could  not  peaceably  compass  their  object,  they 
would  do  it  by  violence.    Accordingly,  as  soon  as  it  was  ascertained 
that  we  would  not  truckle  to  their  proposals  for  a  separation,  they 
introduced  and  urged  to  their  accomplishment,  the  unlawful  mea- 
sures for  an  expulsion.  On  an  allegation,  claiming  to  be  founded  only 
on  mere  rumour,  they  declared  out  of  the  pale  of  the  church  the 
Synods  of  the  Western  Reserve,  Utica,  Geneva,  and   Genessee. 
Thus  without  a  trial,  or  a  shadow  of  trial,  was  cut  off  from  the 
Presbyterian  Church,  so  large  a  portion  of  the  members  obnoxious 
to  this  party,  as  to  secure,  in  their  judgment,  the  perpetual  prepon- 
derance of  their  power.     We  come  into  this  court  then,  gentlemen, 
for  a  trial,  because  it  has  been  denied  us  elsewhere.     We  have  been 
driven  here  by  the  injustice,  not  of  the  Presbyterian  Church,  but  of 
a  party  who  have  claimed  to  rule  that  church  with  a  rod  of  iron; 
and  who  have  endeavoured,  without  the  appearance  of  law  or 
right,  to  lay  on  us  "heavy  burdens  which  neither  we  nor  our  fathers 
were  able  to  bear."     I  am  thankful,  and  I  congratulate  the  Court 
and  jury,  that  we  have  not  to  wade  through  the  mazes  of  theologi- 


2H8 

cal  dispute;  we  have  happily  no  points  of  doctrine  or  of  faith  to 
settle  in  this  controversy.  The  matters  in  dispute,  and  on  which 
you  are  to  decide,  are  simply  matters  of  law  and  of  fact.  The 
question  at  issue  is,  Are  the  respondents  in  this  case  entitled  to  hold 
the  office  of  Trustees  of  the  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America  1  The  general  issue  in  this 
case  is  what  you  are  to  try.  This  issue  is,  Who  are  the  Trustees 
of  the  General  Assembly,  according  to  the  tenor  of  the  act  of  in- 
corporation, passed  by  the  Legislature,  Marcii  28,  1799?  The  re- 
lators in  this  case  claim  to  be  legal  trustees.  There  is  no  dispute 
that  they  were  elected  to  this  office  by  the  body  claiming  to  be  the 
General  Assembly  of  the  Presbyterian  Church,  which  held  its  ses- 
sions in  May,  1838,  in  the  First  Presbyterian  Church  in  this  city. 

The  secondary  issue,  therefore,  comes  directly  under  your  con- 
sideration. This  is,  whether  that  body  which  elected  these  relators, 
was  truly  the  General  Assembly  of  the  Presbyterian  Church.  If 
you  are  satisfied  of  this  fact,  it  will  of  course  be  your  duty  to  ren- 
der a  verdict  for  the  relators.  The  kind  of  incorporation  granted 
by  the  legislature  to  the  General  Assembly,  is  one  of  frequent 
occurrence  here  and  elsewhere.  Some  explanation  of  its  character, 
however,  may  be  necessary.  The  trustees  of  the  General  Assembly 
are  the  legal  corporation  ;  but  by  the  act  of  incorporation  itself,  they 
are  under  the  control  of  a  body  not  incorporated,  and  subject  to  be 
removed  by  that  body,  which  is  also  authorized  to  appoint  others  in 
their  stead.  The  body  to  whose  control  they  are  thus  subjected 
becomes  therefore  what  is  termed  the  body  at  large  of  the  corpora- 
tion, or  body  of  electors;  and  in  this  capacity,  the  General  Assem- 
bly of  the  Presbyterian  Church  is  recognized  in  the  charter  of 
incorporation,  giving  to  it  the  power  to  control  the  real  corpora- 
tion. In  this  investigation,  while  you  are  happily  relieved  from  the 
consideration  of  those  spiritual  matters,  those  doctrinal  points  and 
theological  niceties,  which  belong  to  the  courts  of  the  church,  it 
will  nevertheless  be  necessary  to  examine  the  constitution,  or  form 
of  government  of  the  Presbyterian  Church,  which  is  in  some  re- 
spects different  from  most  others.  This  form  of  government  em- 
braces a  succession  of  judicatories,  as  they  are  technically  called, 
and  bears  a  striking  resemblance  to  the  republican  form  of  our  civil 
government.  By  the  constitution  of  this  church,  no  member  can 
be  expelled  without  citation  and  trial,  first  before  the  inferior  court 
which  has  cognizance  of  the  case,  and  from  this  he  has  the  privi- 
lege of  appeal  to  the  higher  judicatories,  from  the  church  session  to 
the  presbytery,  from  the  presbytery  to  the  synod,  and  from  the 
synod  to  the  General  Assembly.  These  judicatories,  or  courts  of 
justice,  as  they  may  be  called,  have  each  their  appropriate  func- 
tions. The  church  session,  composed  of  the  pastor  and  ruling 
elders  of  a  particular  congregation,  is  the  lowest  court,  and  has 
charge  of  the  discipline,  according  to  the  form  of  government,  of 
the  private  members  of  that  congregation  or  church.  The  next 
higher  court,  or  judicatory  of  the  church,  is  the  presbytery,  which 
is  composed  of  all  the  ministers,  (being  at  least  three,)  and  as  many 
ruling  elders,  as  there  are  congregations,  within  a  certain  district. 


269 

The  ministers  sit  in  presbytery,  not  by  delegation,  but  of  their  own 
right,  by  virtue  of  their  ordination.  The  ruHng  elders  have  their 
seats  in  presbytery  as  representatives  of  the  congregations,  each  of 
which  is  entitled  to  be  represented  by  one  elder.  The  jury  will 
bear  particularly  in  mind  this  fact  in  relation  to  the  ministers.  The 
next  higher  court  is  the  synod,  which  is  composed  in  all  respects 
like  the  presbytery,  only  extending  over  a  larger  district,  and  em- 
bracing, in  fact,  several  presbyteries,  at  least  three.  In  the  language 
of  the  constitution,  the  synod  is  appropriately  declared  to  be  only  a 
larger  presbytery.  The  next  and  highest  judicatory  of  this  church 
is  the  General  Assembly.  This  body  is  constituted  by  representa- 
tion from  the  presbyteries,  without  any  reference  to  the  synods. 
Each  presbytery,  by  the  terms  of  the  constitution,  has  a  right  to  be 
represented  in  the  General  Assembly  by  a  certain  number  of  mem- 
bers, according  to  a  settled  ratio,  as  the  counties  of  this  state  are 
represented  in  the  legislature,  or  the  congressional  districts  in  the 
Congress  of  the  United  States.  This  point  you  will  see  clearly 
established  by  those  portions  of  the  constitution  which  have  been 
submitted  to  you  in  evidence.  This  point  will  claim  the  especial 
attention  of  the  jury,  that  the  General  Assembly  is  composed  exclu- 
sively of  commissioners,  who  are  the  representatives  of  the  presby- 
teries; and  that  each  presbytery  is  entitled  to  its  full  proportionate 
representation  in  that  body.  The  only  question,  in  regard  to  the 
right  of  an  individual  to  a  seat  in  the  General  Assembly,  is,  whether 
he  is  a  representative  duly  commissioned  by  a  presbytery  in  con- 
nexion with  the  General  Assembly.  If  then  certain  officers  entrust- 
ed with  the  business  of  examining  the  credentials  of  members,  or 
appointed  to  other  duties  connected  with  the  organization  of  the 
Assembly,  should  assume  the  power  of  excluding  representatives 
from  the  presbyteries  duly  commissioned,  they  would  commit  a 
high  outrage  upon  the  rights  of  those  presbyteries ;  and  the  ulti- 
mate exclusion  of  such  commissioners,  regularly  appointed  and 
presenting  credentials,  would  necessarily  vitiate  such  organization 
of  the  Assembly. 

But  this  suggestion  is  only  by  the  way,  and  will  hereafter  claim 
a  more  careful  consideration.  It  seemed  necessary,  thus  briefly  to 
review  the  structure  of  the  judicatories  of  this  church,  that  you 
might  be  in  possession  of  the  whole  case;  although,  properly,  the 
highest  court,  the  General  Assembly,  is  the  only  one  with  which  we 
have  to  do.  This  body,  as  you  see  by  the  constitution,  represents 
the  whole  church.  It  is  the  highest  court  of  appeals,  and  within 
the  limits  prescribed  by  the  constitution,  has  a  general  supervisory 
power  over  the  concerns  of  the  whole  church.  But  within  those 
limits  it  must  keep  itself,  or,  if  in  exceeding  them,  it  violates  the 
rights  of  any  portion  of  the  church,  it  of  course  subjects  itself  to 
the  moral  reprobation  of  the  community;  and,  if  such  violation  of 
rights  involve  the  corporate  privileges  of  any  portion  of  its  legiti- 
mate members  or  constituency,  it  necessarily  subjects  itself  to  the 
supervision  of  the  courts  erected  by  the  state  to  adjudicate  on  vio- 
lations of  the  laws  of  the  land,  and  on  questions  involving  the  cor- 
porate rights  of  individuals  and  communities  or  associations  of 

23* 


270 

individuals.  A  few  words  now  may  be  necessary  in  regard  to' the 
manner  in  which  the  General  Assembly  is  constituted,  and  the  spe- 
cific powers  and  duties  of  its  officers  and  of  the  body  itself.  As  to 
the  first,  it  has  been  already  sufficiently  shown  from  the  constitu- 
tion that  the  Assembly  is  constituted  by  delegation  from  the  pres- 
byteries, each  of  which  is  entitled  to  its  appropriate  representation. 
This  you  will  bear  in  mind  throughout  the  whole  of  your  investiga- 
tions, or  you  must  necessarily  fail  of  appreciating  the  real  merits  of 
the  case  committed  to  you.  Its  powers  also  are  clearly  defined  in 
the  portions  of  the  constitution  which  have  been  read  in  evidence. 
You  can  hardly  fail  to  observe  that  among  them  is  not  to  be  found 
the  power  of  instituting  original  process  against  any  portion  of 
the  church,  and  consummating  that  process  in  the  exclusion  of  such 
portion  from  membership,  or  from  being  a  constituent  part  of  the 
church.  As  a  supreme  court  of  judicature  it  may  consummate,  ac- 
cording to  the  principles  laid  down  in  the  constitution,  all  proceed- 
ings of  adjudication  "which  are  regularly  brought  before  it,"  by 
appeal,  complaint  or  reference  from  the  inferior  courts;  and,  in 
certain  cases,  on  a  review  of  proceedings  in  those  courts  it  may 
censure  them  for  what  it  deems  irregular  or  wrong  in  their  pro- 
ceedings. It  may  also,  when  the  good  of  the  church,  in  their 
judgment  requires  it,  divide  certain  of  those  inferior  judicatories, 
distributing  their  component  parts  among  other  judicatories.  But 
nowhere  can  you  find  a  shadow  of  foundation  for  the  exercise  of 
an  original  authority  and  jurisdiction  by  the  General  Assembly, 
consummated  by  itself,  in  the  exclusion  from  the  body  of  the 
church  of  either  an  individual  member,  or  an  inferior  judicatory 
belonging  to  that  church.  This,  I  apprehend,  you  must  see  to 
be  as  plainly  the  fact  as  it  is  that  the  church  has  a  constitution. 
But  if  the  power  of  expulsion,  in  any  form,  were  even  conceded  to 
be  in  the  General  Assembly,  which  we  by  no  means  admit,  and 
which,  probably,  no  Presbyterian,  till  1837,  ever  dreamed  of  claim- 
ing, yet  if  it  were  even  possessed  by  the  Assembly,  it  must  surely 
be  exercised  in  accordance  with  the  same  principles  which  govern 
the  proceedings  in  the  courts  below,  the  only  principles  on  which 
tlie  constitution  of  that  church  allows  any  man  or  body  of  men  to 
be  expelled  from  its  connexion. 

It  may  therefore  be  desirable  on  this  as  well  as  on  other  accounts, 
that  your  attention  should  be  directed  to  those  principles,  as  they 
have  been  read  to  you  and  will  be  placed  in  your  hands  as  evi- 
dence in  this  case.  They  are  developed  in  the  "  Book  of  Disci- 
pline," as  it  is  called,  and  are  an  admirable  system,  in  perfect 
accordance  not  only  with  the  principles  of  holy  charity  inculcated 
in  the  scriptures,  but  with  the  system  of  civil  jurisprudence  esta- 
blished under  our  republican  government,  and  with  those  immutable 
principles  of  justice,  which,  while  they  demand  the  punishment  of 
the  guilty,  throw  around  the  accused  the  guards  of  innocence  until 
he  is  proved  to  be  guilty.  They  esiohWsh  forms  of  process,  clear  and 
intelligible  in  their  character,  by  which  his  trial  shall  proceed,  and 
the  proof  of  his  guilt  be  elicited  and  established  before  he  is  con 
demned.     They  also  prescribe  the  form  and  measure  of  punishment 


271 

for  the  several  grades  of  offence,  and  the  manner  in  which  it  shall 
be  inflicted,  when,  after  a  fair  and  impartial  trial,  the  guilt  of  the  ac- 
cused is  established  by  incontrovertible  proof. 

You  will  also  observe,  gentlemen,  that  by  the  provisions  of  this 
book,  process  against  either  ruling  elders  or  private  members, 
(60,000  of  whom  were  extirpated  from  the  church  by  the  acts  of 
1837,  if  those  acts  are  of  any  valid  force  at  all,)  the  discipline,  I  say, 
of  these  classes  of  members,  is  entrusted  with  the  church  session,  and 
not  one  of  them  can  be  constitutionally  reached  by  the  General  As- 
sembly, by  any  penal  or  disciplinary  act,  unless  he  comes  before 
that  body  through  a  regular  series  of  removals  by  appeal  or  other- 
wise, from  the  session  to  the  presbytery,  and  so  on  up  to  the  General 
Assembly.  So  also  "process  against  ministers  must  commence  in 
the  presbytery  to  which  they  belong,"  to  whom  the  discipline  of  this 
class  of  members  is  entrusted,  and  their  case  can  only  come  be- 
fore the  Assembly  by  a  prescribed  process  of  removals  from  the 
lower  courts.     Thus  far  in  relation  to  process. 

Now,  in  relation  to  the  offences  imputed  to  the  district  of  the 
church  cut  off  by  the  acts  of  1837,  and  on  the  ground  of  which 
that  excision  is  attempted  to  be  justified.  I  say  the  district  of  the 
church,  for  to  no  one  of  the  sixty  thousand  and  more  individuals, 
ministers,  elders,  or  communicants,  thus  unceremoniously  ejected, 
is  any  offence  imputed.  But  what  are  the  offences  in  question.  If 
they  have  a  name  in  the  book,  they  are  "  heresy  and  schism." 
"  Gross  disorders  in  doctrine  and  practice,"  say  the  excinding  acts. 
Well,  the  church  has  provided  in  its  constitution  for  the  punishment 
of  "heresy  and  schism."  If  a  member,  or  a  minister  is  a  heretic,  be- 
cause, for  instance,  he  does  not  believe  in  the  divine  appointment  of 
ruling  elders,  for  that  seems  to  be  the  greatest  possible  heresy,  in 
the  estimation  of  the  Old  School  party,  he  may  be  tried  by  his  ses- 
sion or  his  presbytery,  and  if  it  should  so  happen  that  their  courts 
should  be  so  heretical  as  not  to  consider  the  oflence  a  damnable 
heresy,  and  therefore  not  cut  him  off,  the  prosecutor  can  carry  the 
case  up  in  regular  form  to  the  General  Assembly.  But  when  an 
accidental  majority  in  the  General  Assembly,  or  any  other  majority, 
large  or  small,  take  it  into  their  head  that  "  individual  process  is  dif- 
ficult and  tedious,"  and  avowedly  on  this  ground  conclude  to  leap 
the  barriers  of  the  constitution,  and  at  a  stroke  cut  off  churches, 
presbyteries  and  synods,  it  is  no  answer  to  those  thus  excinded,  to 
say  smooth  things  to  them,  to  say  as  one  of  my  learned  friends  did, 
in  his  opening  for  the  other  side,  and  as  another  has  done  (Mr. 
Preston,)  on  an  incidental  question,  "  Why  really  we  don't  accuse 
you  of  any  oflence,  we  only  say  that  you  are  heretical,  and  we  use 
that  word  only  in  a  technical  sense  ;  you  may  be  very  good  men, 
we  have  no  evidence  against  you.  When  we  thus  declare  that 
you  are  not  Presbyterians  and  cut  you  ofl' entirely  from  the  com- 
munion of  the  church,  we  do  not  impeach  your  moral  character. 
We  do  not  accuse  you  of  any  crime.  We  only  put  you  on  a  level 
with  the  Episcopalians,  the  Roman  Catholics,  the  Baptists,  the 
Methodists,  the  Quakers,  the  Unitarians,  the  Jews,  the  Moham- 
medans and  the  Congregationalists,  who  mav  be  good  men.     But 


272 

they  are  not  Presbyterians  and  neither  are  you.  It  would  be  in- 
decorous in  us  to  say  any  thing  derogatory  to  your  character  as 
men  and  citizens.  Christian  charity  will  not  permit  us  to  assail 
your  characters.  All  we  say,  is,  that  you  are  apostates  and  here- 
tics. We  have  supported  and  sustained  you  when  you  were  weak, 
and  now  you  are  guilty  of  parricide  and  sacrilegiously  endeavouring 
to  destroy  your  parent." 

Why  these  are  very  pliant  gentlemen — eminently  endowed  with 
christian  charity  to  be  sure.  Who  can  possibly  doubt  it,  and 
that  they  have  exercised  it  towards  their  brethren  in  the  most  ex- 
traordinary manner.  In  their  most  wonderful  exercise  of  charity, 
they  in  effect  say,  "  We  do  not  accuse  you  of  being  drunkards,  nor 
of  having  kept  a  disorderly  house,  the  resort  of  drunkards.  We  do 
not  accuse  you  of  any  immorality  or  profanity.  We  only  say  you 
are  not  Presbyterians.  We  mean  nothing  personal.  We  only 
mean  it  in  the  parliamentary  sense.  We  do  not  say  that  you  are 
bad  men,  that  you  are  drunkards,  liars,  or  guilty  of  certain  other 
nameless  crimes.  But  if  you  had  been  guilty  of  these  offences,  in 
the  exercise  of  our  sovereign  volition  and  christian  charity,  we 
could  have  dispensed  with  all  measures  of  excision."  It  was  not 
necessary  for  them  to  say  that  any  one  of  those  who  was  thus  cut 
off  from  church  fellowship  was  a  bad  man.  They  merely  say  to 
them,  "  You  are  guilty  of  heresy."  It  is  vain  to  say  that  that  is  no 
offence,  no  crime,  when  you  visit  it  with  the  highest  punishment  of 
crime,  known  to  this  or  any  other  church  in  our  land. 

Heresy  does  constitute  an  offence  against  the  church,  a  violation 
of  her  constitution  and  discipline.  And  every  member  who  promul- 
gates heretical  opinions  is  subject  to  trial  and  expulsion  from  the 
church.  But  this  trial  and  expulsion  must  be  in  accordance  with 
her  constitution  and  established  rules  of  discipline,  as  has  been 
clearlv  shown  to  you.  It  was  necessary  so  far  to  examine  this 
subject,  in  order  to  understand  the  new  mode  of  punishing  offences 
invented  by  the  General  Assembly  of  1837.  It  is  too  serious  a 
subject  for  amusement,  or  it  would  be  ludicrous  in  the  extreme,  to 
observe  the  preposterous  results  to  which  this  new  mode  of  punish- 
in"-  heresy  in  the  infected  district,  has  led  the  parly  which  perpe- 
trated the  excluding  acts  of  1837  ;  to  see,  for  example,  hundreds  of 
individuals,  ministers  and  laymen  belonging  to  the  Presbyterian 
church,  who  had  been  in  fellowship  and  in  good  standing  for  a 
period  of  forty  years,  and  who  had  contributed  liberally  to  the 
funds  of  tlie  church  during  that  time,  cut  off  from  the  church  of 
their  fathers,  not  only  without  citation  and  without  trial,  but  also 
without  the  commission  of  any  oflence  or  even  the  allegation  of 
any  offence  on  their  part,  but  on  the  ground  of  a  mere  rumour,  that 
some  body,  in  the  same  district  of  the  church,  was  guilty  of  offences. 

I  am  sorry,  gentlemen,  that  it  is  necessary  to  the  issue  in  this 
case  to  exhibit  these  strange  proceedings  of  the  Assembly  of  1837, 
and  to  spread  before  you  their  arbitrary  character  and  the  injus- 
tice of  their  operation.  But  the  necessity  is  imposed  on  me,  be- 
cause, as  has  been  fully  proved  to  you,  they  were  made  the  basis 
of  an  attempt  in  1838  to  organize  an  illegal  and  unconstitutional 


273 

Assembly,  by  the  party  which  perpetrated  these  acts.  To  secure 
this  organization  in  1838,  excluding  the  representatives  of  the  pres- 
byteries within  the  obnoxious  synods,  the  party  in  1837  exacted  of 
their  officers  a  pledge,  that  in  performing  their  functions  connected 
with  that  organization,  they  would  regard,  not  the  constitution  of 
the  church,  but  the  will  of  the  majority  in  1837. 

We  may,  perhaps,  as  well  at  this  time  as  any  other,  advert  to 
the  powers  and  duties  of  those  officers.  The  officers  of  the  Gene- 
ral Assembly  are  a  moderator  to  preside  over  its  deliberations,  and 
clerks  to  perform  certain  duties  appropriate  to  their  office,  such  as 
the  preparation  and  preservation  of  the  records  of  the  Assembly, 
the  reading  of  documents  under  consideration  in  the  body,  and  the 
preparation  of  such  as  are  to.be  sent  abroad  after  they  have  been 
adopted  by  the  Assembly.  In  addition  to  these  natural  and  appro- 
priate duties  of  their  office,  the  moderator  of  the  Assembly  for  one 
year,  is  authorized  by  the  constitution  to  preside  in  the  incipient 
measures  for  organizing  the  Assembly  of  the  succeeding  year.  The 
terms  of  the  constitution  on  this  subject  are,  that  the  moderator  of 
the  previous  year,  "  or  some  other  minister,  shall  preside  until  a  new 
moderator  be  chosen."  By  certain  rules  which  have  been  gene- 
rally observed  in  the  Assembly  for  a  number  of  years,  in  case  of 
the  absence  of  the  last  moderator,  his  place  is  supplied  by  "  the  last 
moderator  present;"  though  this  rule,  as  it  is  not  of  imperative 
obligation,  has  not  always  been  observed.  By  a  regulation  of  the 
Assembly,  there  has  also  been  devolved  on  the  clerks  a  specific 
duty  connected  with  the  organization  of  the  Assembly.  This  duty  is 
to  examine  the  commissions  of  the  delegates  from  the  several  pres- 
byteries, to  report  to  the  house  such  as  they  find  to  be  regular,  that 
the  delegates  whose  credentials  they  are  may  take  their  seats  as 
members  of  the  Assembly ;  also  to  report  to  the  house  such  com- 
missions as  they  find  irregular  or  informal,  that  they  may  be  sub- 
mitted to  a  committee  of  elections,  for  their  decision  respecting  the 
right  to  a  seat  in  the  Assembly,  of  the  members  who  bring  those 
commissions.  For  this  specific  duty  the  clerks  are  styled  a  Com- 
mittee of  Commissions.  They  are,  however,  the  officers  of  the 
house,  and  by  the  terms  of  the  constitution  itself,  they  need  not  be 
members  of  the  Assembly,  and  are  liable  to  be  removed  at  the 
pleasure  of  the  house,  either  with  or  without  a  cause  assigned. 
Such  being  the  prescribed  duties  of  the  moderator  and  the  clerks, 
and  their  respective  relations  to  the  body,  it  will  be  obvious  to  you, 
gentlemen,  that  they  must  have  one  rule,  and  only  one,  to  regulate 
their  actions  in  organizing  the  Assembly.  That  rule  is  the  consti- 
tution of  the  church.  Their  first  and  only  duty  in  this  whole  trans- 
action, is  to  see  that  all  applicants  for  a  seat,  constitutionally  enti- 
tled thereto,  and  none  others,  be  admitted  to  the  Assembly. 

I  now  come  to  a  fact,  gentlemen,  to  be  found  by  you,  namely, 
that  for  a  series  of  years,  certain  presbyteries  and  synods  have 
been  in  connexion  with  the  General  Assembly  of  the  Presbyterian 
Church.  By  the  testimony  it  has  been  shown  to  you  that  these 
bodies  were  constitutionally  organized  and  connected  with  the  As- 
sembly in  the  same  manner  w^th  other  judicatories  of  the  church. 


274 

Twenty-three  of  these  presbyteries  were  thus  organized  and  con- 
nected with  the  General  Assembly  previous  to  the  year  1821,  and 
therefore,  as  has  also  been  shown  to  you,  participated  in  the  adop- 
tion, in  that  year,  of  the  present  constitution  of  the  church.  From 
1802  to  1837,  according  to  their  age  respectivel3%  these  several 
presbyteries  were  in  every  appropriate  form  recognized  by  the 
General  Assembly,  and  shown,  by  their  records,  to  be  constituent 
portions  of  the  Presbyterian  Church. 

Now,  what  is  to  establish  the  right  of  any  presbytery  to  be  re- 
presented in  the  General  Assembly?  Take,  for  example,  the  Pres- 
bytery of  Brunswick,  in  the  Synod  of  New  Jersey.  When  its 
commissioners  present  themselves  to  the  clerks  of  the  Assembly, 
and  demand  to  be  enrolled  as  members,  how  are  these  clerks  to 
decide  whether  they  shall  be  admitted'?  The  first  question  is.  Are 
their  commissions  regular?  Do  they  show  in  an  authentic  form 
that  these  individuals,  ministers  and  elders,  were  appointed  by  the 
Presbytery  of  Brunswick  to  represent  them  in  the  Assembly  ?  Does 
it  appear  by  the  records,  or  is  it  in  any  form  within  the  knowledge 
of  the  clerks,  that  that  presbytery  was  organized  by  the  constitu- 
tional authority,  or  has  been  for  a  series  of  years  recognized  by  the 
Assembly  as  a  constituent  portion  of  the  Presbyterian  Church? 
These  questions  being  answered  in  the  affirmative,  dare  these 
clerks  refuse  to  enrol  their  names?  Or  if  any  defect  appears  in 
their  credentials,  can  they,  without  a  violation  of  their  trust,  do 
otherwise  than  report  them  to  the  house  ?  Again,  when  opportu- 
nity is  afforded  for  the  house  satisfactorily  to  ascertain  that  these 
men  were  duly  appointed  by  the  Presbytery  of  New  Brunswick  to 
represent  that  body  in  the  Assembly,  dare  the  Assembly  do  other- 
wise than  admit  them  as  members?  Could  the  Assembly  do  other- 
wise without  sacrificing  its  own  integjrily?  Would  not  such  refusal 
be,  not  only  an  outrage  on  the  rights  of  these  commissioners  and 
the  rights  of  their  presbytery,  but  would  it  not  also,  according  to 
the  constitution  of  the  church,  authorize  any  fourteen  or  more  of 
the  members  present  to  organize  the  General  Assembly,  admitting 
the  commissioners  from  the  Presbytery  of  Brunswick  and  from  all 
other  presbyteries  of  the  church? 

What  would  you  think,  gentlemen  of  the  jury,  if  the  Congress  of 
the  United  States  should  declare  the  Slate  of  Pennsylvania  no 
longer  a  part  of  the  confederacy,  thrust  our  representatives  from 
their  halls,  and,  at  the  succeeding  session,  refuse  to  admit  the  dele- 
gation of  this  commonwealth,  on  the  jj;round,  forsooth,  that  the  pre- 
vious Congress  had  declared  Pennsylvania  out  of  the  Union?  Will 
any  man  of  common  sense  pretend  that  Congress  has  such  power 
as  this?  Or,  suppose  that  the  legislature  of  this  commonwealth 
should  declare  one  of  the  counties  no  longer  a  part  of  the  state,  and 
on  this  ground  refuse  its  representatives  a  seat,  or  that  our  city 
council  should  treat  in  a  similar  manner  one  of  the  wards  of  the 
city,  would  such  arbitrary  assumptions  be  tolerated  by  the  people? 
Would  they  any  where  find  an  advocate  in  our  land?  Would  any 
court,  possessing  competent  jurisdiction,  justify  the  measure?  In 
these  supposed  cases,  gentlemen,  which,  indeed,  are  hardly  supposa- 


i 


375 

ble,  you  have,  with  one  exception,  a  fair  illustration  of  the  cause 
which  has  driven  my  clients  into  this  court.  The  exception  is,  that 
the  General  Assembly  had,  if  possible,  less  a  shadow  of  claim  to  the 
exercise  of  the  prerogatives  which  it  asserted  in  relation  to  the 
synods  and  presbyteries  in  question,  than  have  the  national  and  state 
legislatures  and  our  city  council  to  the  exercise  of  such  a  power. 

What  would  be  the  consequence  if  the  Senate  and  House  of 
Representatives  in  Congress,  should  undertake  to  disfranchise  one 
or  more  of  the  states  of  this  Union,  by  resolving  that  they  are  no 
longer  a  portion  of  the  confederacy?  Would  such  an  act  be  re- 
garded otherwise  than  an  arbitrary  assumption  of  power,  and  ut- 
terly null  and  void?  Would  not  such  assumption  of  unauthorized 
power,  if  carried  out,  overturn  all  our  civil  and  religious  institu- 
tions, and  wholly  subvert  the  constitutions  of  our  governments? 
And  might  not  the  dominant  party  in  Congress  undertake  to  exclude 
the  state  of  Pennsylvania,  or  any  other  state  in  this  Union,  from  a 
representation  in  the  counsels  of  the  nation,  with  as  much  propriety 
and  justice  as  characterized  the  dominant  party  in  the  General 
Assembly  of  the  Presbyterian  Church,  when  it  resolved  that  the 
Synods  of  Utica,  Geneva,  Genessee,  and  the  Western  Reserve,  and 
their  presbyteries,  were  no  longer  in  connexion  with  that  body,  or 
when,  in  1838,  they  undertook  to  exclude  the  representation  from 
those  presbyteries  ?  Such  an  assumption  on  the  part  of  the  majority 
in  Congress,  would  be  analogous  to  that  of  the  accidental  majority 
in  the  General  Assembly.  To  what  would  such  high-handed  as- 
sumptions lead,  but  to  the  utter  subversion  of  all  law,  all  order,  and 
all  right?  If  suffered  to  be  carried  into  effect  by  a  church  judica- 
tory, they  must  lead  to  the  entire  destruction  of  the  constitution, 
and  the  establishment  of  an  odious  ecclesiastical  tyranny.  The 
General  Assembly  of  the  Presbyterian  Church  is  a  limited  organized 
body,  and  is  constituted  of  representatives  elected  by  the  several 
presbyteries.  It  therefore  has  no  power  to  exclude  any  of  these 
representatives  from  a  seat  in  the  body;  and  the  attempt  to  do  so 
was  an  utter  violation  of  law,  order,  and  the  constitution.  As  a 
lawyer,  I  deny  that  the  General  Assembly  could  be  legally  consti- 
tuted, unless  every  legally  elected  commissioner  from  the  several 
presbyteries  were  permitted  to  take  his  seat.  All  the  representa- 
tives legally  chosen,  have  a  right  to  take  their  seats  in  the  first  in- 
stance, and  participate  in  the  organization  of  the  house,  by  the 
election  of  a  speaker  or  moderator,  and  the  other  officers. 

A  party  in  the  General  Assembly  of  the  Presbyterian  Church,  be 
that  party  the  majority  or  minority,  has  no  right  whatever  to  reject 
or  exclude  any  delegate  duly  elected  by  the  presbytery  to  which 
he  belongs.  In  either  case  then,  (whether  in  the  Congress  of  the 
United  States,  or  in  the  General  Assembly  of  the  Presbyterian 
Church)  an  arbitrary  attempt  to  exclude  or  reject  a  representative, 
would  be  grossly  illegal.  A  party  which  may  by  accident  happen 
to  be  the  majority,  nay  even  the  whole  body  collectively,  has  no 
legal  right  to  deprive  any  representative  duly  elected  by  those  who 
possess  the  constitutional  right  to  elect  him,  from  taking  his  seat, 
and  participating  in  the  organization  of  that  body.     Such  a  pro- 


376 

ceeding  is  a  gross  infraction  of  right,  an  unwarrantable  and  dan- 
gerous assumption  of  power,  and  in  the  case  of  the  Presbyterian 
Church  it  is  a  direct  violation  of  the  constitution,  which  expressly 
declares,  that  "  the  General  Assembly  shall  consist  of  a  delegation 
from  each  presbytery."  A  presbytery  may  fail  of  a  delegation  by 
its  own  neglect  to  appoint,  or  by  the  failure  of  its  delegates  to  at- 
tend, but  if  the  appointment  is  made,  and  the  delegate  in  attendance, 
he  clearly  cannot  be  excluded  without  a  violation  of  the  constitu- 
tion and  of  corporate  rights. 

The  jury  will  then  remember,  that  for  seventeen  years,  before 
1821,  when  the  present  constitution  of  the  church  was  adopted  by 
those  very  presbyteries,  as  well  as  others,  and  from  that  time  to 
1837,  you  will  remember  that  the  presbyteries,  whose  commissioners 
were  excluded  from  the  Assembly  of  that  year,  and  were  refused 
seats  in  the  Assembly  of  1838,  were  admitted  to  have  the  same  right 
as  any  other  presbyteries,  to  a  representation  in  the  General  As- 
sembly. They  could  then  show  as  clear  a  title  to  be  thus  repre- 
sented, as  the  state  of  Rhode  Island  or  that  of  South  Carolina  could 
show  to  a  representation  in  the  Congress  of  the  United  States. 
They  were,  and  were  admitted  to  be,  as  much  a  part  of  the  Pres- 
byterian Church,  as  those  states  are  part  of  the  American  Union. 

Gentlemen,  you  cannot  fail  to  see — what  indeed  our  opponents 
well  know,  and  for  that  reason  have  sedulously  endeavoured  to 
avoid  an  examination  of  that  subject — you  cannot  fail  to  see  that 
the  General  Assembly  of  1837  had  no  shadow  of  right  to  object  to 
an  equal  participation  with  themselves,  by  the  commissioners  from 
these  presbyteries,  in  the  business  of  that  body,  much  less  to  declare 
their  connexion  with  the  General  Assembly  of  the  Presbyterian 
Church  totally  and  for  ever  dissolved.  You  will  bear  in  mind,  as 
lias  been  proved  to  you,  that  the  alterations  in  the  constitution  and 
form  of  church  government  in  1821,  were  approved  by  the  votes  of 
these  presbyteries.  Not  only  were  they  received  and  acknowledged 
as  brethren,  as  fellow-labourers  in  the  church,  but,  as  appears  by 
examining  the  votes,  the  record  of  which  has  been  read  to  you,  the 
amended  constitution  would  have  been  defeated,  had  it  not  been  for 
the  votes  of  those  very  presbyteries.  On  those  very  votes  turned  the 
adoption  of  that  constitution.  No  man  in  his  senses  can  doubt  that 
these  twenty-eight  presbyteries  were  as  fully  entitled  to  a  represen- 
tation in  the  "General  Assembly,"  as  the  "old  presbyteries"  were; 
and  as  well  might  the  representation  from  the  old  thirteen  states  of 
this  Union  undertake  to  exclude  the  representatives  from  Kentucky, 
Ohio,  Illinois,  or  Michigan,  from  a  seat  in  Congress,  as  for  the  rep- 
resentation from  the  older  presbyteries  to  attempt  the  exclusion  of 
the  members  from  the  new  presbyteries.  The  two  cases  are  paral- 
lel. In  both,  the  old  and  the  new  have  an  equal  right,  and  stand  on 
equal  ground.  In  both  cases,  the  rights  of  the  new  constituencies 
have  been  fully  recognized,  and  the  old  have  acted  with  them  as 
equal  parts  of  the  whole  body.  The  human  imagination  cannot 
conceive  any  right  whatever  that  these  twenty-eight  presbyteries  did 
not  possess  in  common  with  the  other  presbyteries,  any  right  that 


277 

their  representatives  did  not  possess  in  common  with  the  represen- 
tatives iVom  the  otiier  presbyteries. 

How,  then,  it  may  be  asked,  could  the  party  which  had  the  pre- 
dominance in  the  Assembly  of  1837,  perpetrate  the  acts  of  excision, 
cutting  off  at  a  single  stroke  these  large  portions  of  the  church,  and 
refusing,  at  the  organization  of  the  Assembly  of  1838,  to  admit  their 
constitutional  representation  in  that  body?  Why,  it  appears  that 
there  were  some  things,  in  the  portions  of  the  church  thus  excinded, 
which  the  party  in  question  disliked,  as  there  are  some  things  in  the 
politics  of  Rhode  Island  and  of  South  Carolina  which  are  otfensive 
to  certain  parties  in  the  national  Congress.  This  is  substantially 
the  amount  of  the  explanation  which  can  be  given  of  these  singular 
transactions.  It  was  alleged  that  certain  irregularities  in  doctrine 
and  discipline  existed  in  these  portions  of  the  church.  The  party, 
finding  the  power  in  their  hands,  by  the  majority  which  they  pos- 
sessed in  1837,  determined  in  some  way  to  get  rid  of  what  was  so 
offensive  to  them.  Accordingly,  they  came  to  us  with  the  very 
modest  proposition,  not,  in  the  first  place,  that  South  Carolina  and 
Rhode  Island  should  be  declared  out  of  the  confederacy,  but  that 
we  should  concur  with  them  in  peaceably  dissolving  the  Union,  or 
dividing  the  church:  that,  in  substance,  what  they  termed  the  New 
School  party,  which  was  understood  to  sympathize  with  the  mem- 
bers in  the  obnoxious  district,  and  many  of  them  to  reside  there, 
should  peaceably  withdraw  from  the  church,  and  organize  a  new 
body,  leaving  to  the  Old  School  the  possession  of  the  seminaries  and 
funds  of  the  church,  except  that  they  would  equally  divide  with  us 
such  portion  of  the  property,  which  had  been  given  to  the  Presby- 
terian Churck  for  its  exclusive  use,  as  the  will  of  the  donors  would 
permit  to  be  given  to  some  other  church  or  body  of  men.  When 
they  found  us  not  prepared  to  accede  to  these  terms,  to  desert  the 
church  of  our  fathers,  and  leave  in  their  hands  exclusively  the  inhe- 
ritance both  of  its  funds  and  its  name,  they  resolved,  not  that  South 
Carolina  and  Rhode  Island,  but  that  western  New  York  and  the 
northern  part  of  Ohio,  were  no  longer  any  part  of  the  Union :  in 
other  words,  that  the  Synods  of  Utica,  Geneva,  Genessee,  and  the 
Western  Reserve,  with  all  their  constituent  parts,  presbyteries, 
churches,  and  communicants,  were  no  longer  any  part  of  the  Pres- 
byterian Church. 

Indeed,  it  is  obvious  that  the  party  which  assumed  to  exercise 
this  power  in  1837,  and  that  in  the  most  summary  manner,  without 
process,  without  trial,  and  without  evidence,  and  to  the  broad  extent 
of  cutting  off,  at  one  fell  swoop,  four  synods,  twenty-eight  presby- 
teries, five  hundred  ministers,  five  hundred  and  ninety-nine  churches, 
and  sixty  thousand  communicants,  that  this  party,  I  say,  did  not  sup- 
pose themselves  to  be  warranted  by  the  constitution  in  any  such 
exercise  of  power,  such  a  stretch  of  arbitrary  sway  as  this.  We 
were  not  permitted  to  go  into  that  matter  in  the  evidence,  and  there- 
fore the  positive  testimony  is  not  before  you.  You  will,  however, 
see  by  the  constitution  itself,  with  which  you  are  bound  to  suppose 
them  to  be  acquainted,  you  will  see  by  necessary  implication  from 
their  knowledge  of  the  provisions  of  that  instrument,  what  we 
24 


278 

wished  to  show  you  by  positive  testimony,  that,  regarding  the  exi- 
gences of  their  cause  to  require  it,  that  party  deemed  it  meet  to 
ride  over  and  trample  in  the  dust  the  provisions  of  that  instrument. 
They,  no  doubt,  in  the  zeal  which  inspired  them,  deemed  it  right  to 
do,  what  you,  gentlemen,  and  the  good  sense  of  all  the  dispassionate 
and  disinterested  community,  will  tell  them  was  wrong,  a  grievous 
wrong;  to  trample  on  the  principles  of  what  they  had  ever  before 
professed  to  regard  as  the  sacred  provisions  of  a  glorious  constitu- 
tion, by  exercising  a  power  which  did  not  belong  to  them  as  the 
General  Assembly,  and  to  exercise  it  in  a  manner  which  no  body 
had  a  right  to  do.  No  judicatory  of  their  church  could  do  it  ac- 
cording to  their  constitution,  and  no  other  body  of  men  in  ecclesi- 
astical or  civil  organizations  could  do  it,  in  accordance  with  any 
principles  of  law  or  right  known  among  men.  You  will  see  addi- 
tional evidence  of  this  in  what,  had  it  proceeded  from  any  other 
than  a  body  of  religious  men,  you  would  not  hesitate  to  pronounce 
the  lame  sophistry  and  flimsy  evasions  of  the  answers  which  they 
adopted,  to  the  manly  protests  which  were  promptly  presented 
against  the  acts  of  their  high-handed  usurpation.  From  the  same 
documents  you  will  also  be  likely  to  gather  the  conviction  of  what, 
also,  we  are  precluded  by  a  rule  of  the  court  (to  which,  however, 
we  cordially  submit,)  from  showing  you  by  positive  testimony, 
namely,  that  the  party  in  question  felt  compelled  to  perpetrate 
these  acts,  which,  how^ever  honestly  intended  by  them  "  for  the 
good  of  the  church,"  we  cannot  but  regard  as  acts  of  most  out- 
rageous injustice,  to  perpetrate  them  at  that  time,  to  carry  them 
through  to  their  consummation  by  a  very  short  and  unceremonious 
process  indeed,  because,  in  their  own  estimation,  their  "time  was 
short,"  if  not  then  improved ;  because  the  majority  by  which  they 
were  able  to  accomplish  this  object,  was  merely  an  accidental  ma- 
jority at  that  meeting,  and  if  they  did  not  improve  the  opportunity, 
it  might  never  return  to  them  again.  Such,  gentlemen,  I  am  per- 
suaded that  you  will  be  obliged  to  conclude,  were  the  impulses 
under  which  they  were  hurried  on  to  the  exercise  of  an  unlawful 
power,  in  an  unlawful  and  desperate  manner. 

Now,  whether  errors  in  doctrine  or  discipline  did  or  did  not 
exist  in  these  portions  of  the  church,  we  have  no  occasion  to  admit 
or  deny.  We  claim,  indeed,  that  neither  in  orthodoxy  or  Presby- 
terian order  are  we  a  whit  behind  them  ;  but  this  is  a  question  not 
to  be  settled  in  the  civil  courts.  If  the  errors  imputed  did  exist, 
those  who  were  guilty  of  them  were  subject  to  the  regular  and  con- 
stitutional discipline  of  the  church.  Had  this  discipline  been  exer- 
cised, (for  we  have  never,  for  a  moment,  refused  submission  to  the 
regular  discipline  of  the  church ;  we  have  always  held  ourselves 
subject  to  its  exercise ;)  had  this  discipline  been  exercised,  and,  in 
its  regular  execution,  had  those  who  constitute  these  portions  of 
the  church  been  excluded  from  its  pale,  neither  they,  nor  those  who 
in  1838  espoused  their  cause,  would  have  found  or  sought  a  place 
here,  at  the  bar  of  their  country's  justice.  They  would  never  have 
come  to  ask  at  your  hands,  gentlemen  of  the  jury,  a  verdict  to  re- 
store to  them  their  rights.     But,  as  is  clearly  in  evidence  to  you. 


279 

gentlemen,  no  such  opportunity,  no  such  trial  was  afforded  them  ; 
but  without  trial,  process,  or  citation,  or,  in  relation  to  the  great 
mass  of  them,  even  the  pretence  of  an  accusation  or  imputation  of 
wrong,  they  were  unceremoniously  cut  off,  in  the  unlawful  manner 
which  has  been  described. 

But  it  is  claimed  that  the  foundation  and  justification  of  these 
acts  is  laid  in  the  repeal  of  a  certain  Plan  of  Union,  by  the  abroga- 
tion of  which  it  is  said  that  these  portions  of  the  church  necessarily 
became  disconnected  with  the  other  portion.  In  order  to  under- 
stand correctly  the  true  relation  of  this  subject,  it  will  be  necessary 
to  consider  two  distinct  series  of  facts  which  have  existed  in  the 
history  of  the  Presbyterian  Church,  and  which  have  been  distinctly 
presented  to  you  in  evidence. 

From  the  very  infancy  of  this  church  there  has  existed  a  prac- 
tice of  associating  with  themselves  brethren  of  other  denominations, 
such  as  they  have  termed  cognate  churches ;  that  is,  those  who  are 
nearly  assimilated  in  their  views  of  doctrine  and  important  princi- 
ples of  church  government.  I  shall  endeavour  to  lead  you  to  dis- 
criminate between  one  class  of  associations  of  this  character,  and 
another,  which  it  will  be,  I  apprehend,  the  great  object  of  the  other 
party  to  confound.  The  distinction  between  them,  if  rightly  appre- 
ciated by  the  jury,  will  put  an  end  to  the  defendants'  case. 

As  early  as  1792,  the  records  of  the  Assembly  show  the  patri- 
archs of  the  church  zealously  engaged  in  forming  associations  with 
other  denominations.  By  patriarchs,  I  mean  the  real  patriarchs, 
under  whose  guidance  the  church  was  carried  safely  forward, 
whose  wisdom  and  sound  discretion,  as  well  as  piety,  were  mani- 
fested in  the  measures  which  they  proposed  and  executed.  They 
were  for  union,  and  for  extending  the  communion  and  fellowship 
of  the  church;  unlike  the  juvenile  ■patiiarchs  who  seem  to  have  ob- 
tained the  control  in  these  latter  days,  and  whose  works  are  acts  of 
disunion  and  excision. 

As  early  as  the  year  1792,  a  plan  of  union  and  correspondence 
was  formed  with  the  General  Association  of  Connecticut;  in  1794 
with  the  Association  of  Massachusetts;  in  1802,  with  that  of 
Vermont;  in  1808,  with  that  of  New  Hampshire;  and  subse- 
quently with  the  Dutch  Reformed  and  Associate  Reformed 
churches,  and  some  others.  These  plans  of  union  became  so  nu- 
merous as  to  require  a  set  of  rules  to  regulate  the  correspondence 
which  they  involved.  With  at  least  the  four  Congregational  As- 
sociations first  named,  the  union  formed  was  so  intimate,  as  to 
admit  the  members  interchanging  the  fraternal  expressions  of  fel- 
lowship and  confidence,  not  only  to  sit  and  deliberate,  but  also  to 
vote  in  the  bodies  to  which  they  were  sent.  Thus  the  real  patri- 
archs of  the  church,  extended  wide  the  arms  of  their  benevolent 
regard,  and  took  other  denominations  into  their  embrace,  for  the 
purpose  of  extending  the  Redeemer's  kingdom.  From  year  to 
year,  we  find  them  pursuing  this  course,  as  late,  at  least,  as  1821. 
Again,  the  General  Assembly  of  the  Presbyterian  Church,  proposed 
to  the  General  Synod  of  the  Associate  Reformed  church,  a  union, 
of  a  still  more  intimate  character.     The  Plan  of  Union  which  was 


280 

unanimously  adopted  in  the  committee  of  conference  between  the 
two  denominations,  of  which  committee,  we  find  that  the  venerable 
Dr.  Green,  the  early  projector  of  these  plans  of  union,  presided  as 
chairman,  was  subsequently  ratified  by  the  Assembly  and  the 
Synod.  In  pursuance  of  this  arrangement,  the  General  Assembly 
received  this  Associate  Church,  with  all  its  diflerences  of  sentiment 
and  practice,  into  its  own  body.  There  were  difierences  in  the 
Confession  of  Faith,  as  you  have  learned  from  the  evidence  sub- 
mitted to  you,  particularly  on  the  subject  of  the  powers  of  the 
civil  magistrate,  and  in  the  article  respecting  baptism,  differences 
in  the  form  of  government,  in  the  basis  of  representation,  the  con- 
stitution of  the  General  Assembly  requiring  at  least  three  ministers 
to  constitute  a  presbytery,  entitled  to  representation  in  the  General 
Assembly,  and  that  of  the  Associate  Church  requiring  only  two,  and 
to  crown  the  whole,  the  ministers  and  elders  of  the  Associate 
Church,  received  their  confession  of  faith,  only  as  being  "for  sub- 
stance the  system  of  doctrine,"  taught  in  the  scriptures.  It  is  a 
singular  fact,  that  this  is  the  very  highest  offence,  in  the  declared  esti- 
mation of  the  excluding  party  of  1837  and  1838,  which  they  ever 
dreamed  of  imputing  to  any,  and  this  but  to  a  portion,  of  those 
whom  they  have  thus  cut  off,  for  this  grievous  heresy,  and  yet 
some  seventeen  years  ago,  they  could  amalgamate  the  whole  As- 
sociate Church  with  their  own  body,  with  this,  in  their  present 
estimation,  most  odious  and  abominable  feature  of  deformity 
crowning  all  their  other  divergencies  from  the  true  standard  of 
Presbyterian  orthodoxy.  Yes,  this  church  was  thus  received,  and 
with  the  express  stipulation  too,  that  they  might  retain  all  these 
distinctive  peculiarities,  and  in  addition  to  them  all,  retain  also,  on 
the  principle,  so  odious  at  least  to  the  juvenile  patriarchate  of  the 
church  at  the  present  day,  on  the  principle  of  "elective  affinity," 
I  believe  is  the  phrase,  retain  their  separate  presbyterial  organiza- 
tions. Now,  as  if  the  climax  of  absurdities  and  preposterous  incon- 
sistencies of  these  Old  School  Presbyterians,  as  they  boast  them- 
selves to  be,  were  to  be  placed  above  the  reach  of  mortal  appre- 
hension, the  very  men  who  came  into  the  church  under  these  cir- 
cumstances, under  this  plan  of  union,  are  in  the  front  rank  among 
those  who  are  engaged  in  the  very  charitable  office  of  excinding 
their  brethren,  who  from  some  supposed  and  undefined  coimexion 
with  another  plan  of  union,  commit  the  grievous  sin  of  preaching, 
(some  of  them,)  to  Congregational  churches. 

These  several  plans  of  union  have  been  read  in  full  to  the  jury, 
[See  pp.  77  to  84,  and  156  to  158,  of  this  report,]  but  in  order  to  a  full 
understanding  of  the  point  now  submitted  to  your  examination,  it  may 
be  well  for  me  again  to  advert  to  them.  Now  by  the  operation  of  the 
plans  of  union  of  the  class  which  I  have  been  considering,  individuals 
were  brought  from  other  denominations,  from  associations  of  Con- 
gregationalists,  into  the  judicatories  of  the  Presbyterian  Church,  par- 
ticularly into  the  General  Assembly,  and  there  invested  for  the 
time,  with  all  the  privileges  of  members,  while  they  retained  in  full 
their  relation  to  their  own  denomination  ;  and  if  members  of  these 
Congregational  bodies  removed  into  the  bounds  of  the  Presbyterian 


281 

Church,  and  chose  to  transfer  their  relation,  these  plans  of  union 
provided  for  their  being  received  to  an  equal  standing  with  those 
who  were  ordained  in  the  Presbyterian  Church.  The  union  with 
the  Associate  Reformed  Church  went  even  beyond  this,  and 
brought  another  denomination,  not  occasionally  and  individually, 
but  permanently  and  in  mass,  into  the  bosom  of  the  church,  as  con- 
stituent members.  The  very  thing,  you  will  remark,  was  done  by 
these  unions,  and  signally  so  by  that  with  the  Associate  or  Scotch 
Church,  which  was  not  dune,  but  which  the  whole  strength  of  the 
counsel  on  the  other  side  is  to  be  employed  in  endeavouring  to 
make  you  believe  was  done,  by  another  plan  of  union,  which  it  will 
now  shortly  be  our  business  to  consider,  the  plan  of  1801,  which 
was  abrogated  by  the  Assembly  of  1837,  because,  forsooth,  it  was 
unconstitutional — and  unconstitutional  because  it  brought  aliens  into 
the  church  !  Wonderful  precocity  of  vision  which  discovered  this  ! 
The  Plan  of  Union  of  1801  is  of  an  entirely  different  character 
from  those  which  we  have  been  considering.  It  is  different  in  its 
nature,  and  was  adopted  for  different  purposes.  For  the  same  ge- 
neral object  indeed,  it  was  professedly,  and  doubtless  was  really 
designed,  namely,  the  object  of  advancing  the  interests  of  religion. 
Like  the  others  also,  it  was  proposed  originally  by  the  General  As- 
sembly itself.  By  certain  regulations  embraced  in  the  other  plans, 
you  will  recollect,  that  the  ministers  of  one  of  the  associated  bodies, 
going  into  the  bounds  of  another,  and  bearing  credentials  of  his 
good  standing  in  the  body  from  which  he  came,  was  to  be  received, 
on  the  strength  of  those  credentials,  under  the  patronage  and  into 
the  fellowship  of  the  body  into  whose  bounds  he  came.  Under  the 
operation  of  one  of  these  plans,  you  will  recollect  that  a  whole  de- 
nomination, the  Associate  Church,  was  received,  with  all  its  pecu- 
liarities, by  the  General  Assembly,  into  the  bosom  of  the  Presbyte- 
rian Church.  Not  so  the  Plan  of  Union  of  1801.  Your  attention 
is  requested  to  the  features  of  this  plan,  as  I  shall  now  read  its  pro- 
visions. (See  pp.77  and  78  of  this  report.)  Now,  gentlemen,  what 
is  this  act  of  Union,  or  more  properly,  are  these  "regulations,"  for 
that  is  the  proper  title,  that  of  Plan  of  Union  being  merely  affixed 
to  it  by  the  compiler  of  the  Digest,  what  are  these  "  regulations, 
adopted  by  the  General  Assembly  of  the  Presbyterian  Church  and 
the  General  Association  of  Connecticut,  with  a  view  to  prevent 
alienation  and  promote  union  and  harmony  in  those  new  settlements 
which  are  composed  of  inhabitants  from  these  bodies?"  The  very 
title  which  I  have  now  repeated,  tells  you  what  they  are,  a  plan  to 
promote  union  and  harmony  in  the  new  settlements.  Not  to  intro- 
duce members  of  a  foreign  body  into  the  bosom  of  the  Presbyterian 
Church.  The  provisions  of  the  plan  which  have  been  repeatedly 
read  in  your  hearing,  are  in  perfect  accordance  with  this  title. 
They  provide,  that  a  Presbyterian  minister  may,  in  the  new  and 
scattered  settlements  of  the  country,  without  loosing  his  caste  as  a 
Presbyterian,  or  subjecting  himself  to  discipline,  preach  to  a  Con- 
gregational church;  nay,  they  direct  him  so  to  do,  particularly  if 
he  is  sent  out  as  a  missionary,  and  finds  such  a  church  destitute  of 
the  ministrations  of  the  gospel.     They  provide  also,  that  a  Presby- 

24* 


282 

terian  congregation  may,  under  similar  circumstances,  receive  the 
labours  of  a  Congregational  minister,  and  that  Presbyterians  and 
Congregationalists,  meeting  in  a  community  too  few  and  too  feeble 
to  form  separate  congregations,  may  unite  in  one  church,  and  that, 
in  the  isolated  case  of  a  mixed  church  of  this  character,  a  standing 
committee,  appointed  by  that  church,  and  exercising  its  discipline, 
though  not  ordained  as  elders,  may,  under  certain  circumstances, 
be  represented  in  the  presbytery.  It  admitted  nobody  to  the  Pres- 
byterian Church  nor  into  the  General  Assembly,  neither  minister, 
church,  nor  private  member.  It  merely  prescribed  terms  on  which 
the  General  Assembly  would  recommend  to  those  who  were  already 
in  the  church,  to  associate,  under  peculiar  circumstances,  with  their 
Congregational  brethren  in  the  new  settlements.  The  utmost  effect, 
therefore,  of  the  repeal  of  this  Plan  of  Union,  or  of  these  regulations 
to  promote  harmony,  would  be,  that  Presbyterian  ministers  must 
no  longer  thus  associate  with  Congregational  churches;  that  Pres- 
byterian churches  must  no  longer  receive  the  labours  of  Congrega- 
tional ministers,  and  that  Presbyterian  members  must  no  longer 
associate  with  Congregationalists,  in  forming  a  mixed  church. 
This  was  perfectly  understood  by  the  General  Assembly,  when  in 
1835,  they  expressed  the  opinion,  that  these  regulations  should  no 
longer  be  in  operation.  They  then  kindly  and  christianly  declared 
that  the  privilege  should  be  reserved  to  those  already  thus  associated 
of  continuing  together  in  harmony.  It  seems  that  the  violent  spirit 
of  the  juvenile  patriarchs  impelling  to  the  rupture  of  all  the  bonds 
of  peace  and  unity,  had  not  then  obtained  the  entire  ascendancy  in 
the  councils  of  the  General  Assembly. 

We  will  now  return  to  the  General  Assembly  of  1837.  By  the 
opening  of  the  other  side,  it  is  admitted,  nay  affirmed,  that  there 
came  to  the  Assetnbly  of  that  year,  one  body  of  men,  peacefully 
adhering  to  the  principles  of  their  form  of  government  and  book  of 
discipline,  and  another  body  determined  that,  at  all  events,  the 
differences  which  had  existed  in  the  church,  should  be  settled,  not 
by  the  whole  body,  constituting  the  General  Assembly,  but  with  a 
fixed  determination  to  exclude,  in  some  form,  such  as  did  not  agree 
with  them.  If  they  should  find  themselves  in  a  minority,  as  they 
had  every  reason  to  expect,  it  was  their  determination  to  rupture 
the  church  and  retire  from  it.  But  if,  as  unhappily  proved  to  be 
the  case,  they  should  find  themselves  a  majority  of  the  house,  they 
were  determined  to  expel  at  least  so  many  of  their  brethren  as 
should  secure  to  themselves  a  majority  thereafter.  This,  gentle- 
men, you  cannot  fail  to  regard  as  an  unlawful  combination.  If  I 
have  in  any  degree  overrated  the  admissions  of  my  learned  friend, 
who  opened  on  the  other  side,  (which  I  have  not  intended  to  do,)  I 
have  certainly  not  so  misstated  them,  as  materially  to  vary  the  re- 
sult. At  any  rate,  the  fact  is  clearly  spread  out  on  the  history  of 
the  transactions  of  that  year,  in  their  Convention  and  in  the  Assem- 
bly, that  there  was,  of  the  Old  School  party,  such  an  unlawful  com- 
bination. I  use  the  term  in  a  worldly  sense.  In  a  legal  sense,  it 
was  an  uncandid,  an  unlawful  combination.  Whether  it  was  un- 
christian, I  do  not  assume  to  decide. 


283 

From  that  time  to  this,  the  same  characteristics  have  marked  the 
proceedings  of  the  two  parlies.  On  one  side,  open  and  unsuspect- 
ing, with  no  secrecy  in  their  councils,  their  meetings  for  deUberation 
open  to  all  of  all  parties,  and  actually  attended  throughout  by  some 
of  the  Old  School.  On  the  other  side,  secrecy  and  seclusion  ;  clo- 
seted behind  bolts  and  bars,  to  concoct  their  measures,  effectually 
to  rid  themselves  in  some  way  of  so  many  of  their  New  School 
brethren,  as  to  secure  to  themselves  the  preponderance  of  power. 

The  first  act  in  the  execution  of  this  purpose,  was  the  abrogation 
of  the  Plan  of  Union,  or  the  regulations  which  I  have  last  described 
to  you,  for  promoting  union  and  harmony.  That  this  was  a  part 
of  the  plan  for  carrying  out  this  fixed  determination  of  theirs,  I 
infer,  not  from  any  natural  or  necessary  connexion  between  the 
abrogation  of  this  plan  and  the  accomplishment  of  their  determina- 
tion, but  because  of  the  reasons  assigned  for  the  abrogation.  One 
of  these  reasons  was,  that  the  Plan  of  Union  was  unconstitutional, 
which  I  defy  any  man  to  show.  This  was  a  regulation,  not  an  ar- 
ticle of  constitutional  force.  But  if  it  were  of  that  force,  forty  years 
acquiescence  is  enough,  in  all  reason,  to  establish  it;  and  the  forma- 
tion and  adoption  of  a  new  constitution  in  the  mean  time,  by  the 
very  persons  who  are  alleged  to  have  come  into  the  church  through 
its  operation,  must  leave  but  a  faint  reason  indeed  for  its  abroga- 
tion, on  the  ground  of  unconstitutionality. 

The  next  act,  in  the  series  carrying  out  their  determination,  im- 
mediately followed  the  report  of  final  disagreement  in  the  com- 
mittee, to  the  voluntary  separation  of  the  church,  on  the  terms  most 
graciously  proposed  by  this  party.  This  act  was  a  resolution,  that 
"  by  the  operation  of  the  abrogation  of  the  Plan  of  Union  of  1801, 
the  Synod  of  the  Western  Reserve  is,  and  is  hereby  declared  to  be 
no  longer  a  part  of  the  Presbyterian  church  in  the  United  States  of 
America."  The  syllogism,  however  perfect  and  wise  in  the  appre- 
hension of  those  who  adopted  it,  had  not  yet  got  into  the  heads  of 
the  victims.     They  therefore  protested  against  the  act. 

The  next  step  was  a  resolution,  that  "in  consequence  of  the 
abrogation  of  the  Plan  of  Union  of  1801,  as  utterly  unconstitu- 
tional, and  therefore  null  and  void  from  the  beginning,  the  Synods  of 
Utica,  Geneva  and  Genessee,  be  and  are  hereby  declared  to  be 
out  of  the  ecclesiastical  connexion  of  the  Presbyterian  Church,  and 
that  they  are  not  in  form  nor  in  fact  an  integral  portion  of  this 
church.  And  yet,  after  all  this,  they  come  into  this  court  and  avow 
that  it  is  all  a  mistake,  this  talk  about  excision;  that  we  have  not 
been  put  out  of  the  church  at  all ;  and  that  if  we  had  waited  a  few 
minutes  in  1838,  we  might  have  been  admitted  to  our  seats  in  the 
Assembly.  Examine,  gentlemen,  the  excluding  acts,  and  see  if  it  is 
not  with  singular  effrontery,  that  we  are  now  told  that  we  have 
never  been  put  out  of  the  church. 

Not  put  out  of  the  church,  indeed  !  and  why  ?  Because,  say  they, 
we  adopted  a  resolution  re-admitting  you,  on  your  furnishing  evi- 
dence that  you  "  are  purely  Presbyterian  in  doctrine  and  order." 
Monstrous  insult  to  the  human  understanding !  Not  put  out,  be- 
cause you  can   come  in  again!  not  put   out  of  the  Presbyterian 


284 

church,  because  you  can  come  hack  into  that  church — and  that  too 
on  the  same  terms  that  Jews,  Mohammedans,  or  Pagans  can  come 
in !  No,  gentlemen,  we  are  not  put  out  of  the  church,  as  I  doubt  not 
you  will  find  in  your  verdict,  but  for  a  very  different  reason  than 
that  assigned.  You  will  not  say,  that  we  are  not  out,  because  we 
are  out  and  can  come  in,  but  that  we  are  not  out,  because  the  exclud- 
ing acts  which  did  all  they  could  to  put  us  out,  and  which,  if  sanctioned, 
do  effectually  put  us  out,  were  impotent  to  accomplish  their  object; 
that  is,  that  those  abominable  acts  were,  by  their  unconstitutionality, 
as  well  as  palpable  injustice,  null  and  void;  and  consequently  that 
the  proceedings  of  the  same  party  for  organizing  an  Assembly  in 
1838,  based  avowedly  upon  these  unlawful  acts  of  1837,  were  on 
this  account,  as  well  as  on  account  of  their  inherent  injustice  and 
unconstitutionality,  unlawful  proceedings,  vitiating  the  organization 
which  they  proposed  to  form,  and  making  both  right  and  necessary 
our  organization,  which  recognized  the  members  thus  unlawfully 
excluded,  and  all  other  commissioners  constitutionally  appointed 
to  the  Assembly. 

But  the  strangest  argument  of  all  adduced  here,  against  the 
claims  of  the  relators  in  this  case,  is  that  there  never  has  been  a 
Presbyterian  General  Assembly  since  1801.  I  would  not  stop  to 
notice  this  argument,  although  the  gentlemen  have  proposed  to  lay 
such  stress  upon  it,  except  to  say,  that  the  exception  which  they 
have  made  in  favour  of  Dr.  Green  will  not  hold.  According  to  the 
argument  of  the  gentlemen,  you  will  recollect,  that  the  Rev.  Doctor 
is  left  alone  in  his  glory,  as  the  only  legitimate  trustee  of  the  General 
Assembly,  because,  forsooth,  the  adoption  of  the  Plan  of  Union  of 
1801  destroyed  the  distinctive  character  of  the  Presbyterian 
Church,  by  the  introduction  of  Congregationalism,  and  the  Doctor  is 
the  only  survivor  of  the  trustees  appointed  previous  to  that  time. 
But,  gentlemen,  I  shall  show  that  Dr.  Green  must  go  too  ;  for  though 
this  party  treat  with  such  disrespect  the  acts  of  that  venerable  man 
in  proposing  plans  of  union,  (it  appears  that  he  is  the  father  of  that 
of  1801,  as  well  as  of  the  rest,)  we  are  not  wilhng  to  leave  him 
"  solitary  and  alone"  in  his  old  age.  Such  a  course  might  indeed 
promote  union  and  harmony;  at  least,  it  would  undoubtedly  con- 
duce to  a  unity  of  councils,  greater  than  has  recently  obtained  in 
the  Presbyterian  Church. 

But  give  the  gentlemen  their  argument.  The  consequence 
is,  that  there  has  never  been  any  General  Assembly  at  all 
since  1801,  and  the  donors  may  all  take  their  donations  back 
again.  How  far  the  Associate  Reformed  Church  may  take  advan- 
tage of  this  argument,  is  not  for  me  to  say.  They  may  wish  their 
library  back  again,  that  now  lies  at  Princeton. 

But  the  argument  of  the  gentlemen  is  quite  too  much  for  their 
own  purpose,  in  another  and  more  important  particular ;  for  by  the 
records  of  the  Assembly  which  have  been  read  in  evidence,  it  ap- 
pears that  the  voting  of  Congregationalists  in  the  General  Assembly, 
was  introduced,  not  by  the  Plan  of  Union  of  1801,  but  by  that  of 
1704,  five  years  previous  to  the  appointment  of  Dr.  Green.  The  argu- 


285 

ment,  gentlemen,  is  not  ours,  but  tlieirs.     They  are  welcome  to  its 
eflects,  for  if  valid  at  all,  it  effectually  cuts  off  all  the  defendants. 

But  we  must  not  complain  of  the  excinding  acts,  we  are  told, 
because  we  have  recognized,  have  admitted  their  validity.  How 
have  we  done  this"?  Why,  forsooth,  in  1838,  we  said  that  there 
were  no  vacancies  in  the  Board  of  Trustees,  whereas  there  was  a 
vacancy  in  1837  ascertained  and  supplied  by  an  election,  after  the 
passage  of  the  excinding  acts,  as  is  shown  by  the  minutes  of  the 
Assembly  of  that  year.  Our  answer  to  this  may  be,  if  indeed  it 
require  an  answer,  that  we  knew  nothing  of  that  transaction.  That 
is,  we  were  not  bound  to  know  it,  and  there  is  no  evidence  that  we 
did.  Because  they  appointed  a  trustee  or  trustees  after  the  excision, 
it  by  no  means  follows  that  we  knew  the  fact.  We  did  not  see  their 
minutes,  and  certainly  they  held  themselves  under  no  obligation  to 
read  them  to  us  after  they  had  shown  us  the  door.  Besides,  we 
cannot  look  with  very  great  respect  to  those  minutes  as  authority, 
since  we  have  ascertained  the  fact  that  they  contain  some  things 
and  omit  others,  as  in  the  case  of  the  transactions  respecting  the 
pledge  demanded  of  the  clerks,  not  a  trace  of  which  is  discernible 
on  the  minutes,  and  it  was  exceedingly  fortunate  that  we  discovered 
it  at  all. 

There  is  another  argument  advanced  on  the  other  side  to  which 
we  must  give  a  moment's  attention.  It  is  said,  that  if  the  excinding 
acts  were  unlawful  and  void,  then  the  Assembly  was  destroyed,  and 
could  have  no  legitimate  successor;  so  that  the  case  of  the  relators 
must  fail,  as  they  could  not  have  been  appointed  trustees  by  the 
General  Assembly,  that  body  having  become  extinct.  But  this, 
gentlemen,  is  a  misunderstanding  or  perversion  of  the  law  of  cor- 
porations, which  you  will  not  allow  to  deceive  you.  The  court  will 
doubtless  instruct  you,  if  it  shall  be  deemed  necessary,  that  an  illegal 
act  of  a  corporation  does  not  of  itself  destroy  that  corporation. 

Before  closing  my  notice  of  the  proceedings  of  the  Assembly  of 
1837,  it  is  proper  that  I  should  here  call  your  attention  to  another 
transaction  connected  with  those  proceedings.  It  has  been  clearly 
proved  to  you,  gentlemen,  though  we  should  never  have  known  the 
fact,  if  we  had  been  dependent  on  the  minutes  of  that  body  alone 
for  our  information.  No,  there  were  some  at  least,  who  had  good 
sense  enough  to  discern  that  there  were  some  things  which  it  would 
do  no  credit  to  their  party  to  have  spread  out  on  the  records  of  the 
Assembly.  I  allude  to  the  pledge  required  of  the  clerks,  that  they 
would  carry  out  the  unlawful  acts  of  1837  in  organizing  the  Assem- 
bly of  1838.    ' 

I  am  sorry  to  detain  you,  but  it  is  necessary  for  me  to  read  here, 
the  evidence  by  which  this  fact  has  been  distinctly  proved,  as  we 
are  approaching  the  consideration  of  the  acts  in  which  this  pledge 
was  fulfilled.  [For  the  evidence  referred  to,  see  pp.  99  to  104  of 
this  report.] 

When  a  majority  of  them  had  come  to  the  General  Assembly 

with  a  determination  to  cast  their  brethren  out  of  the  church,  they 

were  in  doubt  as  to  the  validity  of  what  they  purposed  to  attempt. 

They  therefore  first  proposed  the  appointment  of  a  committee  to 


286 

divide  the  church.  In  that  committee  they  made  certain  proposi- 
tions to  the  other  party,  the  character  of  which  has  been  exhibited 
to  you;  but  the  minority  refused  to  consent  to  their  taking  advan- 
tage of  them,  and  proposed  to  treat  with  them  on  equal  terms. 
This  was  in  turn  refused  by  the  majority,  who  would  not  be  satis- 
fied with  any  thing  less  than  a  relinquishment,  on  the  part  of  the 
minority,  of  the  name  and  character  of  Presbyterians,  and  an  ac- 
knowledgment on  their  part  that  they  were  apostates  and  heretics. 
Finding  that  the  minority  would  not  consent  to  this,  they  at  once 
proceeded  to  exclude  them  from  the  church.  The  act  itself  evinces 
that  they  then  abjured  all  dependence  on  legal  or  constitutional 
means,  or  they  had  not  the  benefit  of  "  counsel  learned  in  the  law." 
They  had  failed  in  one  attempt,  and  were  determined  to  effect 
their  designs  by  some  process  or  other,  some  trick  of  legerdemain. 
I  mean  no  personal  disrespect  to  any,  but  they  turned  these  gentle- 
men out  of  doors  without  any  process  of  law  or  order,  and  without 
trial.  Well,  what  next?  They  required  a  pledge  from  the  clerks 
that  they  would  keep  them  out  of  doors,  the  next  year.  They  felt 
it  so  necessary  to  strengthen  their  usurped  power  by  every  devisa- 
ble means.  Conscious,  it  would  seem,  of  the  illegality  of  the  ex- 
cinding  acts,  they  dared  not  to  trust  the  clerks  with  the  constitution 
in  their  hand,  their  only  proper  guide,  to  organize  the  next  General 
Assembly.  They  therefore  require  of  those  oflficers  a  pledge,  that 
in  that  organization  they  will  contribute  their  mile  to  enforce  the 
exclusion  of  their  brethren. 

Now,  as  the  determination  to  exclude  these  portions  of  the  church 
was  not  previously  announced,  but  concocted  in  secret  conclave, 
so  the  account  of  this  transaction  was  not  printed  with  the  other 
minutes.  And  why  ?  They  now  assign  as  a  reason  for  this  singular 
omission  that  the  clerks  signified  their  intention  to  exclude  these 
gentlemen  from  their  seats  in  18.38 ;  and  therefore  the  resolution 
requiring  a  pledge  that  they  would  do  so  was  withdrawn.  But 
was  there  not  another  reason,  that  by  concealing  the  fact  of  the 
pledge,  the  other  party  might  be  ignorant  of  their  intentions?  The 
effect  of  not  printing  that  famous  party  pledge,  not  only  was  to 
have  been  that  their  design  should  be  concealed,  but  also  to  enable 
them  to  complete  the  work  of  destruction  before  the  other  party 
were  aware  of  the  deep-laid  plot. 

These  acts,  base  as  they  are,  were  all  predicated  on  the  assump- 
tion that  those  on  whom  they  were  to  operate,  are  not  Presbyteri- 
ans, but  Congregationalists,  who  came  into  the  Presbyterian  Church, 
forsooth,  under  the  Plan  of  Union  of  1801.  Now  without  dwelling 
here  on  the  fact,  fully  established,  that  the  plan  referred  to  neither 
did  nor  could  admit  Congregationalists  to  the  Presbyterian  Church; 
nor  on  the  fact,  also  fully  proved  to  you  by  the  documents  of  the 
General  Assembly,  that  those  synods  were  constitutionally  orga- 
nized by  the  Assembly,  without  any  reference  to  that  plan,  their 
constituent  parts  being  Presbyterian,  and  some  of  them  having  been 
in  the  church  before  the  plan  was  formed ;  and  without  detaining 
you  by  a  reference  to  the  testimony  of  Mr.  Squier,  who  was  fully 
examined  by  the  other  side  respecting  the  synods  in  New  York, 


287 

and  other  evidence  adduced,  that  all  the  ministers  composing  the 
presbyteries  of  those  synods,  at  the  time  of  the  excision,  were  Pres- 
byterian ministers :  without  dwelling  on  these  things,  1  beg  leave 
to  refer  to  the  character  of  the  synods  which  were  put  out  of  the 
church  in  this  ruthless  manner,  as  that  character  is  exhibited  by  the 
records  of  the  Assembly.  But  first  I  will  refer  to  the  character  of 
the  Synod  of  Albany,  from  which  the  Synod  of  Geneva  was  sepa- 
rated by  the  General  Assembly  in  1812,  and  the  Synod  of  Utica  in 
1829,  which  was  similarly  situated.  The  statistical  tables  published 
under  the  direction  of  the  General  Assembly,  by  its  stated  clerk, 
show  from  year  to  year,  the  number  and  names  of  the  ministers 
and  churches  connected  with  each  presbytery.  Those  tables  are 
in  evidence.  The  Synod  of  Albany,  you  will  recollect,  is  not 
touched  by  the  excinding  acts,  though  the  Presbytery  of  London- 
derry in  that  synod,  with  twenty-five  ministers,  has  eight  who  are 
pastors  of  Congregational  churches  within  its  limits,  the  same  num- 
ber who  are  pastors  of  Presbyterian  churches,  and  nine  who  are  not 
pastors  of  any  church.  The  Presbytery  of  Newburyport,  in  the 
same  synod,  has  sixteen  ministers,  and  the  statistical  table  of  the 
Assembly  of  1837,  at  the  very  time  when  the  others  were  cut  off, 
designated  only  two  in  that  presbytery  as  pastors  of  Presbyterian 
churches.  Yet  these  are  sound  in  doctrine  and  order !  I  suppose 
these  ministers  voted  on  the  right  side.  If  not,  the  right  time  had 
not  come  to  excind  them.  However,  be  that  as  it  may,  they  are 
good  Presbyterians.  None  of  them  are  excinded.  The  acts  of 
excision  did  not  touch  the  Synod  of  Albany,  notwithstanding  some 
of  the  presbyteries  belonging  to  that  synod  are  more  closely  con- 
nected with  the  Congregationalists  than  any  of  the  excinded  pres- 
byteries, the  Presbytery  of  Otsego,  or  any  other. 

It  appears  by  the  same  statistical  table,  that  the  Presbytery  of 
Oneida  consists  of  forty-seven  ministers,  not  a  single  one  of  whom 
is  pastor  of  a  Congregational  church.  The  same  remark  applies 
to  the  Presbytery  of  Geneva,  and  so  with  the  other  presbyteries  in- 
cluded in  the  synods  which  were  formed  out  of  the  Synod  of  Al- 
bany, and  yet  that  synod  is  untouched,  and  they  are  cut  off.  Oh, 
but  say  they,  there  were  such,  but  those  presbyteries  did  not  men- 
tion it.  To  this  I  reply,  that  the  record  is  the  evidence,  and  that 
evidence,  the  statistical  report  of  the  General  Assembly,  fully  sus- 
tains the  position  I  have  taken  in  relation  to  this  matter.  It  would 
be  strange  indeed,  if  such  connexions  had  been  formed  in  accord- 
ance with  the  Plan  of  Union  of  1801,  and  the  presbyteries  never 
name  the  fact  in  their  report ;  especially  while  the  provisions  of  that 
Plan  of  Union  were  entirely  unquestioned,  and  while  the  forming 
of  such  connexions  was,  moreover,  recommended  and  encouraged 
by  the  General  Assembly,  as  being  meritorious  and  praiseworthy. 
No.  Congregationalism  was  not  the  real  cause  of  the  excision. 
There  was  another,  and  of  a  different  character,  the  lust  of  domi- 
nation. As  I  before  stated,  these  gentlemen  came  to  the  General 
Assembly  of  1837,  determined  that  they  would  get  a  vote  to  secure 
to  themselves,  the  Old  School  party,  such  a  majority  in  future  Ge- 
neral Assemblies,  as  would  enable  them  to  rule  the  whole  Presbv- 


288 

terian  Church ;  and  those  synods  were  cut  off  for  that  purpose. 
The  jury  will  say,  whether  it  was  not  formally  declared  by  the 
learned  gentleman  who  opened  the  defendants'  case,  that  their  party 
never  intended  that  the  other  party  should  be  consulted  in  regard  to 
the  manner  in  which  the  differences  in  the  church  should  be  settled. 

[Mr.  Hubbell  said  that  he  did  not  make  any  such  admission,  and 
explained  what  he  said  on  that  subject.] 

Mr.  Meredith  proceeded:  I  cheerfully  accept  the  explanation, 
though  I  certainly  so  understood  the  gentleman,  I  am  glad  that  it 
was  not  so  stated  by  the  counsel.  But,  how  much  better  is  it? 
They  were  determined  that  none  should  vote  in  the  settlement  of 
those  differences,  except  such  as  they  called  Presbyterians ;  that  is, 
they  choose  to  stigmatize  the  New  School,  as  they  called  them,  but 
whom  we  believe  to  be  in  fact  the  Old  School,  if  that  term  is  to  de- 
note an  adherence  to  the  real  principles  of  Presbyterianism,  to  the 
constitution  and  discipline  of  the  church;  but  they  choose  to  stig- 
matize the  New  School  as  not  being  Presbyterians,  and  then  cut  off 
enough  of  them  to  answer  their  purpose,  to  make  it  no  longer  "tedi- 
ous and  troublesome"  to  govern  the  rest  as  they  choose.  This  fact 
then  is  conclusively  established,  that  they  came  with  a  fixed  design 
to  exclude  from  the  General  Assembly  and  from  the  Presbyterian 
church,  those  who  had  participated  in  forming  the  constitution  of 
that  church,  and  had  assiduously  laboured  therein  for  a  period  of 
forty  years.  This  suicidal  act  they  performed;  and  then,  afraid 
that  the  constitution  would  regain  its  supremacy  in  the  organiza- 
tion of  the  Assembly  of  1838,  they  required  of  the  clerks  a  pledge, 
as  you  have  seen,  that  they  would  disregard  its  sacred  provisions, 
and  conform  to  the  excinding  will  and  pleasure  of  the  majority  in 
1837. 

Gentlemen  of  the  jury :  I  have  endeavoured  to  present  to  you 
without  any  exaggeration,  the  character  of  the  excinding  acts  of 
the  General  Assembly  of  1837,  together  with  the  preparation,  by 
the  pledge  of  the  officers  of  the  Assembly,  for  the  subsequent  con- 
summation of  those  acts,  and  concisely  to  exhibit  the  constitutional 
provisions  of  the  Presbyterian  Church  which  should  have  been  scru- 
pulously regarded  by  that  grave  Assembly  in  all  its  proceedings,  but 
which,  by  those  acts,  were  violated  in  a  manner  the  most  astonishing 
and  unprecedented. 

That  those  acts  were  utterly  unconstitutional  and  void,  and  that 
they  were  the  result  of  an  unlawful  combination  of  otje  portion  of 
the  General  Assembly,  against  the  rights  and  privileges  of  another 
portion,  must  be  perfectly  apparent  to  you,  gentlemen,  as  to  every 
unprejudiced  person  conversant  with  the  facts.  It  will  doubtless 
be  equally  obvious  to  you,  that  this  unconstitutional  violation  of 
rights,  occurring  in  the  body  at  large,  or  body  of  electors  of  the 
corporation — the  trustees  of  the  General  Assembly,  and  involving 
the  disfranchisement  of  a  large  body  of  those  electors  of  the  corpo- 
ration, the  redress  of  the  wrong  is  properly  to  be  sought  before 
the  civil  tribunals  of  the  country. 

We  now  come  to  the  consideration  of  those  proceedings  in  1838 
which  have  been  detailed  in  the  testimony  and  which  may  be  justly 


289 

regarded  as  the  counterpart  of  the  excinding  acts  of  1837,  even  the 
attempt  of  the  moderator  and  clerks  to  exclude  from  their  seats  in 
the  General  Assembly  of  1838,  all  the  commissioners  from  the 
twenty-eight  presbyteries  within  the  bounds  of  the  four  excinded 
synods.  It  has  already  fully  appeared  that  that  Assembly  had  no 
power  to  put  out  any  of  the  commissioners  from  these  presbyteries, 
and  consequently  that  officers  of  the  body  could  not  possibly  possess 
any  such  power,  for 

"No  stream  can  higher  than  its  fountain  flow." 

No  such  power  was  conferred  on  them  by  the  excinding  acts  of 
1837,  for  those  acts,  as  I  have  already  shown  you,  were  unlawful. 
They  were  unlawful  and  absolutely  void.  I  have  also  showed  you 
that  they  had  no  confidence  in  their  case,  that  they  did  not  rely  on 
the  validity  of  the  acts  of  excision,  but  like  the  woman,  the  harlot 
who  was  willing  that  king  Solomon  should  divide  the  living  child, 
rather  than  the  true  mother  should  have  it,  the  Old  School  party 
was  willing  to  sacrifice  the  living  child;  rather  than  admit  them  to 
their  just  rights  in  the  General  Assembly,  they  were  determined  to 
blot  the  General  Assembly  itself  out  of  existence. 

But  as  I  said,  the  excinding  acts  were  utterly  null  and  void.  The 
acts  of  the  General  Assembly  of  1837  could  not  bind  the  General 
Assembly  of  1838.  Much  less  could  a  concealed  pledge  of  the 
clerks  and  moderator  of  that  Assembly  clothe  them  with  the  autho- 
rity which  they  usurped.  The  General  Assembly  of  1837  could  not 
give  its  officers  any  authority  over  the  General  Assembly  of  1838. 
Their  only  legitimate  authority  was  derived  from  the  constitution. 
The  mere  fact  of  their  appointment  was  all  that  devolved  on  the 
Assembly  of  the  previous  year,  and  by  the  constitution  only  could 
they,  with  a  shadow  of  right  or  reason,  be  guided  in  executing 
the  duties  of  their  appointment.  The  General  Assembly  of  1837 
was  dissolved  at  the  close  of  its  session  in  that  year,  and  the  Gene- 
ral Assembly  of  1838  was  a  new  body,  composed  of  delegates 
elected  by  the  several  presbyteries,  and  responsible  to  no  former 
Assembly.  To  that  body  came  two  parties:  one  of  them  composed 
of  those  who  represented  the  twenty-eight  presbyteries  within  the 
bounds  of  the  four  excinded  synods,  and  those  who  sympathized 
with  them  under  the  unrighteous  wrong  which  they  had  suf- 
fered. The  other  party  was  composed  of  those  who  had  a 
small  majority  of  numerical  strength  in  the  General  Assembly  of 

1837,  and  who  were  predetermined  to  exclude  the  other  parly,  in 
opposition  to  the  authority  of  the  constitution  of  the  church  and  of 
the  laws  of  the  land ;  in  other  words,  to  carry  out  the  rebellion  of 
1837;  a  party  resembling  Samson  only  in  his  blindness. 

As  the  same  spirit,  so  we  find  the  same  course  of  conduct  cha- 
racterizing the  respective  parties  as  on  approaching  the  meetinof  of 
the  previous  year.  The  one  party,  determined  to  place  themselves 
above  every  principle  of  the  constitution,  and  every  legitimate  power 
of  both  the  church  and  the  state,  came  to  the  General  Assembly  of 

1838,  actuated  by  the  same  fixed  determination  to  exclude  all  who 
stood  in  their  way,  as  in  1837. 

"25 


290 

Accordingly,  you  find  them  meeting  in  secret  conclave,  with 
closed  doors,  in  order  the  more  effectually  to  conceal  their  plans  t"rom 
the  other  party.  On  the  other  side,  we  find  the  New  School  party, 
with  its  characteristic  frankness,  open,  disdaining  concealment, 
making  their  intentions  known  to  the  Old  School  party,  and  to  the 
whole  church,  by  public  notice,  inserted  in  several  religious  news- 
papers of  extensive  circulation.  Through  this  medium  they  gave 
a  general  invitation  to  all  the  delegates  to  the  General  Assembly, 
to  attend  a  meeting  for  consultation,  in  relation  to  the  affairs  of  the 
church,  and  the  discharge  of  their  duty  in  their  peculiar  circum- 
stances. At  their  meetings  for  consultation,  some  of  the  Old  School 
men  attended;  enough  at  any  rate,  to  keep  an  eye  on  them.  And 
it  would  be  unreasonable  to  suppose,  that  all  that  passed  was  not 
immediately  communicated  to  their  adversaries,  who  were  then  as- 
sembled together  in  secret  conclave  for  the  purpose  of  devising 
measures  to  ensure  their  exclusion  from  the  church. 

But  these  matters  belong  to  the  preliminaries  of  what  the  respec- 
tive parties  were  to  perform. 

I  come  now  to  other  points  on  which  you  must  find  the  facts  of 
the  case,  the  particulars  of  which  have  been  detailed  by  the  wit- 
nesses. Here  permit  me  to  I'emark  that  the  witnesses  on  both  sides 
are  of  great  respectability. 

We  are  happily  relieved  from  the  painful  necessity  which  some- 
times occurs  of  scrutinizing  testimony  with  a  view  to  its  actual 
credibility.  In  the  whole  mass  of  testimony  which  has  been  elicited 
during  the  last  two  weeks,  there  is  an  entire  agreement  of  all  the 
witnesses,  on  both  sides,  as  to  most  of  the  principal  facts  in  the 
case;  and  such  apparent  discrepances  in  the  testimony  as  exist, are 
of  such  a  character  as  may  be  wholly  attributable  to  the  different 
positions  occupied  by  the  witnesses,  or  the  circumstances  with  which 
they  were  surrounded  at  the  time.  Thus  the  witnesses  on  the  one 
side  testify  that  certain  facts  transpired,  while  many  on  the  other 
side  testify  that  they  did  not  hear  them.  This  only  proves  that  the 
latter  were  located  in  a  position  less  favourable  for  hearing  than 
the  former,  or  that  other  circumstances  affected  unfavourably  their 
hearing,  as  was  indicated  by  some  of  these  witnesses.  It  is  no 
proof  that  such  event  did  not  take  place.  Thus,  whatever  seeming 
contradiction  exists  in  the  testimony  in  this  case,  may  be  easily 
reconciled.  Gentlemen,  there  are  three  points  which  we  regard  as 
conclusively  established  by  this  testimony. 

1st.  That  there  was  such  misconduct  in  the  officers  of  the  Assem- 
bly, in  their  proceedings  for  organizing  that  body,  as,  if  allowed  by 
the  Assembly,  would  have  fatally  vitiated  that  organization,  for 
which  misconduct  they  were  justly  liable  to  removal. 

2d.  That  they  were  properly  and  legitimately  removed. 

3d.  That  the  General  Assembly  was  then  constitutionally  orga- 
nized in  connexion  with  the  movements  of  Mr.  Cleaveland,  Dr. 
Beman,  and  others,  and  the  election  of  Dr.  Fisher  as  moderator, 
and  Dr.  Mason  and  Mr.  Gilbert  as  clerks. 

These  points  being  established  to  your  satisfaction,  the  subsequent 
adjournment  of  the  body  thus  organized  to  the  First  Church,  was 
unquestionably  an  act  to  which  they  were  perfectly  competent,  and 


291 

their  election  of  the  relators  in  this  case  as  trustees  is  admitted. 
The  necessary  corollary,  therefore,  is,  that  the  relators  were  ap- 
pointed by  the  lawful  Assembly,  and  the  case  is  ours. 

On  the  other  hand  what  do  the  counsel  oppose  to  these  positions? 
Points  of  law,  of  order.  You  were  out  of  time,  they  say ;  your 
proceedings  were  imperfect,  were  out  of  order.  They  rest  their 
whole  case  upon  a  mere  point  of  order. 

But  I  proceed  to  the  consideration  of  our  position  in  regard  to 
the  conduct  of  the  officers,  and  first  of  the  clerks,  as  a  committee 
of  commissions.  Their  acting  in  this  capacity,  it  will  be  remarked, 
was  not  sanctioned  by  the  constitution,  but  they  acted  in  that  ca- 
pacity in  accordance  with  a  usage  which  had  for  some  time  obtained 
in  the  Assembly,  and  on  that  account  they  had  been  constituted  a 
committee  on  commissions  for  convenience  merely,  in  order  that 
time  might  be  saved  to  the  General  Assembly  by  the  previous  en- 
rolment of  the  commissioners.  We  have  acquiesced,  so  far  as  their 
action  was  right,  and  in  accordance  with  previous  usage.  So  far, 
the  common  law  will  sustain  them,  and  no  farther.  They  had  no 
power  and  no  right  to  say,  whether  regular  commissions  should  be 
entered  on  the  roll.  Usage  required  them  to  enrol  all  such  without 
<;xception,  and  to  report  all  commissions  which  were  irregular  to 
the  house.  They  had  no  further  discretion  whatever.  They  had 
no  right  to  reject  any  commission  which  was  offered  to  them  for 
enrolment.  They  admit  that  the  commissions  from  the  presbyteries 
belonging  to  the  four  excinded  synods  were  presented  to  them,  and 
that  they  promptly  refused  to  receive  them.  Did  they  refuse  to  receive 
them  on  the  ground  of  irregularity?  No:  but  merely  because  of 
the  excinding  resolutions  of  1837,  and  the  pledge  they  had  then  given 
to  their  party.  The  only  question  which  they  asked  was,  whether 
those  commissions  came  from  within  the  excinded  synods,  and  on 
being  answered  in  the  affirmative,  they  peremptorily  refused  to  re- 
ceive them. 

And  on  what  ground  did  they  so  refuse?  Was  it  on  the  question 
of  constitutional  right  in  these  members  to  a  seat?  Impossible! 
nor  was  there  any  such  pretence.  Up  to  1837,  when  the  excinding 
resolutions  were  passed,  the  presbyteries  from  which  these  minis- 
ters came  formed  a  part  of  the  Presbyterian  Church.  That  they 
were  acknowledged  by  the  General  Assembly  as  being  in  full  com- 
munion therewith,  appears  by  divers  acts  of  said  Assembly,  to  which 
we  have  already  adverted,  and  it  is  not  denied.  The  evidence  is 
abundant  and  conclusive,  and  it  would  be  burning  daylight  to  detain 
the  jury  on  that  point.  From  1802  up  to  1837,  we  find  the  minis- 
ters belonging  to  the  presbyteries  within  the  infected  district  sitting 
and  acting  in  the  General  Assembly,  no  objection  being  made  by 
any  one.  During  this  period  of  thirty-six  years,  we  find  that  the  re- 
cords of  these  synods  and  presbyteries  were  regularly  sent  up  to  the 
General  Assembly  for  examination,  as  provided  for  by  the  discipline 
of  the  Presbyterian  Church.  And  we  find  further,  that  these  records 
were  approved  by  the  General  Assembly,  except  in  one  case,  and 
that  on  a  point  relating  to  ruling  elders,  a  point  which  an  Episco- 
palian would  not  consider  essential  to  salvation  or  to  church  order. 
But  it  appears  that  it  is  one  of  the  requisitions  of  the  Presbyterian 


292 

Church,  and  an  essential  reqiiisite  in  its  order  and  government,  that 
there  shall  be  ruling  elders  ordained  for  life.  Whether  this  is  es- 
sential or  not,  is  not  what  we  are  now  to  consider.  What  we  are 
now  considering,  aixl  what  the  records  of  the  General  Assembly 
show,  is,  that  they  were  in  every  form  recognised  by  the  Assembly. 
Their  contributions  to  the  funds  of  the  General  Assembly  were 
raised  during  that  time,  and  received  and  applied  in  the  same 
manner  as  contributions  from  other  portions  ol'  the  church.  And 
yet  it  was  proposed  by  this  Old  School  party  to  their  New  School 
brethren  in  1837,  that  they  should  retain  exclusive  possession  of  the 
name  of  the  church,  of  the  Theological  Seminary  at  Princeton,  and 
the  Western  Theological  Seminary  at  Alleghany  town,  and  the 
Missionary  and  Education  funds.  And  they  then  very  modestly 
propose  that  the  other  property  belonging  to  the  church  shall  be 
divided,  so  far  us  the  icill  of  the  donors  ivill  adniii ;  when  they  well 
knew  that  this  equivocal  proposition,  if  assented  to  by  the  other 
party,  would  put  it  into  their  power  to  appropriate  to  themselves 
the  whole  funds  of  the  church :  and  this,  notwithstanding  the 
churches  within  the  "  infected  district,"  had  contributed  to  the  funds 
of  this  very  Theological  Seminary  at  Princeton,  &c.  It  is  the  prac- 
tice of  the  General  Assembly  to  direct  the  statistical  reports  from 
the  several  presbyteries  to  be  printed  annually:  and  to  these  statis- 
tical reports  I  refer,  as  the  excluded  synods  and  presbyteries  are 
there  fully  recognised  as  having  contributed  to  these  funds. 

But  to  return  to  the  clerks'  duty.  Now^  I  ask  you,  what  is  to  es- 
tablish the  rightful  claim  of  an  individual  presbytery,  that  these  pres- 
byteries have  not  complied  with?  Their  ministers  have  been  or- 
dained in  regular  order,  and  the}^  have  been  uniformly  recognised 
by  the  General  Assembly,  and  have  acted  on  perfect  equality  with 
others  in  that  Assembly  for  many  years.  They  have  themselves 
adopted — yes,  formed  the  very  constitution  of  the  church,  in  con- 
nexion with  their  brethren.  What  then  is  wanting  to  establish  their 
right  to  a  seat  in  the  Assembly,  which  is  furnished  in  the  case  of 
any  other  presbytery  ?  Plainly  nothing  !  absolutely  nothing  wathin 
the  range  of  thought  or  reason. 

The  clerks  were  then  clearly  guilty  of  misconduct  in  refusing  to 
receive  any  commission  which  was  tendered  to  them.  Such  a  pro- 
cedure was  without  a  precedent  in  the  usages  of  the  Presbyterian 
Church,  and  consequently  the  common  law  will  not  sustain  them. 
Common  law  is  common  sense,  and  will  sanction  no  such  outrage. 
Whether  the  counsel  will  resort  to  some  quibble  of  parliamentary 
law  for  their  support,  I  cannot  tell.  If  they  do,  they  will  be  very 
likely  to  have  no  better  success  than  at  common  law.  The  clerks 
had  pledged  themselves  to  exclude  the  delegates  from  the  excluded 
synods,  and  they  were  determined  to  fulfil  that  pledge,  regardless 
alike  of  parliamentary  law  and  common  law,  as  of  the  constitution 
of  their  own  church.  If  they  had  supposed  themselves,  or  had  even 
been  on  any  ground,  warranted  in  refusing  to  enrol  them  as  mem- 
bers of  the  Assembly,  even  in  that  case,  the  most  they  could  do  was 
to  receive  the  commissions  and  report  the  facts  to  the  house.    They 


293 

were  shut  up  to  the  one  or  the  other  course  by  the  very  express 
terms  of  their  appointment  as  a  committee  of  commissions. 

Of  this,  you  will  recollect,  that  by  the  testimony  of  Mr.  Krebs, 
himself  one  of  those  clerks,  he  was  perfectly  aware,  and  argued  the 
point  with  his  colleague.  Dr.  M'Dowell,  regarding  that  course,  it 
seems,  as  the  full  extent  to  which  even  his  pledge  bound  him.  Mr. 
Krebs  was  desirous  to  receive  these  commissions,  and  leave  it  to 
the  General  Assembly  to  decide  what  was  to  be  done  with  them: 
but  the  other  having  the  seniority,  persisted  in  the  refusal;  and  Mr. 
Krebs,  though  he  wished  to  receive  them,  and  leave  the  responsi- 
bility of  doing  a  wrong  act  with  the  Assembly  itself,  yet  ultimately 
sanctioned  and  participated  in  the  misconduct,  though  contrary  to 
his  own  judgment. 

The  clerks  must  have  been  very  intent  on  their  business  indeed, 
as  appears  by  their  locking  the  door,  that  their  attention  to  the 
business  of  making  up  the  roll  might  be  undivided.  That  those 
commissions  were  not  authentic,  or  in  regular  form,  was  not 
alleged  by  the  clerks,  because  they  were  acting  in  accordance 
with  the  pledge  which  they  had  given  to  'the  party  in  1837;  a 
pledge  which  I  had  not  named,  if  they  had  not,  in  their  determina- 
tion that  it  should  be  kept,  violated  their  duty  as  officers  of  the 
General  Assembly,  and  their  trust  as  a  committee  on  commissions. 
They  were,  then,  guilty  of  gross  misconduct.  You  will  remember 
that  the  clerks  were  not  themselves  members  of  the  General  As- 
sembly. They  acted  as  a  committee  of  commissions  in  accord- 
ance with  a  recent  usage,  and  as  a  mere  matter  of  convenience, 
having  been  the  clerks  in  1837.  They  held  their  office  during  the 
pleasure  of  the  body,  and  were  liable  at  any  time  to  be  removed. 

I  come  now  to  the  consideration  of  the  conduct  of  another  offi- 
cer, whose  official  duty  and  whose  relations  to  these  transactions 
have  been  already  explained.  The  moderator  exercised  his  au- 
thority as  presiding  officer  in  the  General  Assembly  of  1838,  (at 
its  commencement,)  not  by  the  appointment  of  that  body,  but  by 
virtue  of  his  election  to  the  office  of  moderator  in  the  General  As- 
sembly of  1837,  and  in  accordance  with  former  usage. 

Where,  then,  do  you  find  Dr.  Elliott?  Does  he  come  at  the 
hour  of  eleven,  gravely,  and  in  accordance  with  former  usage,  to 
perform  the  simple  and  appropriate  religious  duties  connected  with 
opening  the  Assembly  of  1838,  and  then  meekly  to  "  hold  the 
chair"  of  the  forming  body,  till  the  pleasure  of  his  brethren  is  ex- 
pressed in  regard  to  the  individual  whom  they  will  have  for  his 
successor?  Instead  of  this,  you  find  him,  at  the  hour  of  nine  in 
the  morning,  busily  engaged  in  marshaling  a  phalanx  of  troops  in 
the  different  quarters  of  the  house  in  which  the  Assembly  is  to  con- 
vene; stationing  a  picket  here  and  another  there,  flanking  the  posi- 
tion which  he  is  to  occupy,  with  picked  and  sturdy  warriors, 
arranging  a  solid  body  of  the  main  army  on  his  right,  his  left,  and 
in  his  front;  with  Dr.  Harris,  as  surgeon-general,  stationed  in 
the  midst  of  the  south-western  division,  which  seems  to  have  been 
the  most  numerous,  and  where  his  services  might  be  most  needed, 
with  his  lint  and  bandages  to  staunch  any  wounds  that  might  be 
25* 


294 

received,  or  to  minister  cordials  to  those  in  that  quarter,  who,  it 
seems  were  likely  to  be  attacked  with  a  violent  cough,  (not  a  legis- 
lative cough  ;  oh  no  !  Mr.  Lowrie  was  there,  an  experienced  hand, 
to  see  to  that;  besides,  by  the  constitution,  the  Assembly  has  no 
legislative  power,  but,)  a  martial  cough,  I  suppose,  as  they  were  in 
very  warlike  mood.  Well,  here  you  find  Dr.  Elliott,  in  the  midst  ot 
this  hostile  array.  The  moderator,  at  the  head  of  an  insurrectionary 
force,  and  the  only  question  agitated,  seems  to  have  been,  whether 
the  rebels  would  prove  strong  enough  to  overpower  the  authorities, 
that  is,  the  constitution,  and  those  who  adhered  to  it. 

In  this  strange  condition,  we  find  the  moderator  and  his  party 
throughout.  The  ostensible  warlike  preparations  were,  perhaps, 
in  a  measure  intermitted,  during  the  brief  period  of  the  public  reli- 
gious services.  But  unless  we  suppose  in  them  a  greater  power  ot 
sudden  abstraction  than  is  common,  w'e  must  suppose,  that  even 
while  engaged  in  addressing  the  throne  of  grace  in  the  solemn 
attitude  of  prayer,  he  and  his  party  were  devising  plans  for  the 
exclusion  of  a  portion  of  the  commissioners  from  their  seats  in  the 
General  Assembly.  I  can  not  say  that  they  slept  on  their  arms  as 
soldiers  in  the  tented  field,  but  I  will  say,  that  at  that  very  time 
they  had  girded  themselves  with  their  mystical  armour,  and  were 
prepared  for  battle. 

What  is  the  evidence  before  you  ?  Why  that  Dr.  Elliott  was  a 
pledged  man.  He,  as  well  as  the  clerks,  was  pledged  to  use  all  the 
force  of  his  official  station  in  carrying  out  the  design  of  a  party. 
True,  the  pledge  was  not  recorded  and  printed  in  the  minutes  of 
1837,  but  the  moderator  and  clerks  had  verbally  pledged  them- 
selves, and  were  acting  under  a  pledge,  to  a  party,  and  not  in  the 
discharge  of  their  duty.  Those  in  the  south-west  part  of  the 
church  were  the  remnant  of  the  mnjority  of  1837,  and  the  other 
seats  in  the  vicinity  of  the  moderator  were  occupied  by  their 
allies. 

How  was  it  with  the  other  party?  Some  of  them  occupied,  as 
has  been  proved  to  you  in  evidence,  in  an  open  meeting  for  con- 
sultation on  the  state  of  the  church  ;  others  reaching  the  city,  as 
Mr.  Lathrop  stated  in  his  testimony,  just  in  season  to  meet  their 
duties  in  the  Assembly,  and  all  resorting  to  the  house  appointed  for 
the  convocation  at  about  the  usual  hour.  There  they  find  ingress 
denied  them  through  the  usual  doors  of  entrance  for  members  of 
the  Assembly,  and  are  obliged  to  wander  round  to  the  other  doors 
of  the  building.  When  at  last  they  obtained  admittance  to  the 
body  of  the  church,  they  were  obliged  to  take  the  lowest  seats,  the 
others,  those  nearest  to  the  moderator,  being  previously  occupied 
by  the  Old  School  party.  The  gross  injustice  and  oppressive  cha- 
racter of  these  proceedings  on  the  part  of  the  Old  School,  and 
the  design  which  they  indicated,  are  too  apparent  to  need  comment. 
They  show  that  excessive  caution  and  preparation,  which  indicate 
a  feverish  jealousy  of  the  success  of  their  illegal  conspiracy  against 
the  rights  of  the  others,  which  explains  the  conduct  of  the  moderator 
and  shows  why  he  was  so  easily  brought  under  the  influence  of 
violent  excitement  and  loss  of  temper  in  the  subsequent  proceed- 


295 

ings.  I  do  not  wish  to  say  any  thing  harsh  or  disrespectful  of 
either  of  the  gentlemen  concerned  in  these  transactions,  but  I  think 
it  proper  to  offer  a  remark  or  two  in  relation  to  the  temper  mani- 
fested by  Dr.  Elliott  and  others  of  his  party  on  that  memorable 
occasion.  I  assert  (and  the  assertion  accords  with  the  testimony 
in  the  case)  that  Dr.  Elliott  did  fall  into  a  state  of  violent  and  un- 
pardonable excitement,  and  that  in  this  way  alone  can  it  be  ac- 
counted for,  that  a  person  usually  governed,  as  I  doubt  not  that 
he  is,  by  the  mild  and  courteous  spirit  of  the  gospel,  should  treat  so 
harshly  as  he  did,  gentlemen  and  brethren  pursuing  a  mild,  peace- 
ful and  orderly  course  for  the  maintenance  of  rights.  His  hurried 
and  petulant  refusal  to  receive  the  motions  of  Dr.  Patton  and  Dr. 
Mason,  when  their  language  and  manner  is  described  by  all  the 
witnesses,  on  both  sides,  as  altogether  respectful  and  courteous;  his 
refusals  to  put  to  the  house  their  repeated,  but  respectful  appeals 
from  his  decisions,  and  his  impatient  calls  on  the  clerk  to  read  the 
roll  "  if  he  had  one  ready,"  all  indicate  that  Dr.  Elliott  had  suffered 
for  a  time  the  violent  agitation  of  passion  to  overcome  the  sway  of 
the  benign  principles  of  the  gospel.  He  was  pursuing  a  wrong 
course.  He  was  met  in  that  course  by  mild  and  gentlemanly  op- 
ponents, adhering  firmly  indeed  to  constitutional  principles,  and 
pursuing  steadily  and  calmly  the  constitutional  means  for  their 
maintenance. 

Nothing  is  more  calculated  to  overcome  the  balance  of  temper, 
than  for  one  conscious  of  pursuing  a  wrong  course,  to  be  put  in  the 
wrong  by  those  whom  his  course  is  intended  to  injure,  especially  if 
the  injured  party  maintains  an  equable  temper  and  courteous  con- 
duct. Such  was  Dr.  Elliott's  position,  and  so  manifestly  had  Drs. 
Patton  and  Mason  the  advantage  of  him,  so  obviously  was  their 
cause,  the  cause  of  right,  triumphing,  even  in  their  quiet  submission 
to  his  unreasonable  and  unlawful  decisions,  that  he  seems,  by  the 
time  that  Mr.  Squier  rose,  to  have  lost  all  command  over  himself, 
and  to  have  met  his  mild  demand  of  the  rights  of  his  presbytery,  by 
the  most  appalling  denunciation,  one  which,  in  a  circle  less  refined 
and  grave,  is  sometimes  heard  in  the  height  of  passion,  from  lips, 
and  in  terms  accounted  vulgar  and  profane.  I  shall  not  repeat  the 
three  short  words,  which,  in  such  circles,  express  the  sentiment 
referred  to,  but  it  is  more  to  my  purpose  to  notice  the  fact,  thai  Dr. 
Elliott,  sitting  then  as  the  head  of  the  highest  tribunal  of  the  Pres- 
byterian Church,  replied  to  the  application  of  Mr.  Squier  by  a  quo- 
tation of  awful  import,  from  the  sentence  of  final  leprobation,  pro- 
nounced upon  hypocrites  and  apostates,  by  the  Great  Judge  of 
quick  and  dead.  Taking  into  view  all  the  circumstances  of  the 
case,  it  certainly  was  one  of  the  most  astonishing  exhibitions  of 
presumption  and  passion,  and  would  seem  to  present  a  more  fit 
occasion  for  the  application  of  Mr.  Boardman's  heathen  maxim, 
than  that  on  which  it  was  quoted  by  him.  This  strange  language 
from  both  these  gentlemen,  however,  is  probably  only  a  develop- 
ment of  the  violent  passion  which  was  manifested  by  others  of  the 
same  party,  in  the  scene  of  tumult  which  they  created,  in  aid  of  Dr. 
Elliott's  unlawful  exercise  of  official  authority,  to  prevent  the  con- 


296 

stitutlonal  organization  of  the  Assembly.  They  are  such  exempli- 
fications of  the  infirmity  of  human  nature,  as  are  likely  to  be  made, 
wheii  good  men  suffer  their  zeal  for  a  particular  object  to  betray 
them  into  wrong  measures  for  its  attainment. 

These  ebullitions  of  passion  appear  to  have  characterized  the 
measures  of  the  party  during  these  transactions. 

I  must  now  call  your  attention  to  the  several  steps  taken  by  the 
moderator,  Dr.  Elliott,  under  these  circumstances,  in  connexion 
with  the  propositions  brought  forward  by  those  who  sought  to 
restore  the  action  of  the  church  to  its  constitutional  order. 

To  establish  the  facts  themselves  I  need  not  detain  you ;  for,  as 
already  remarked,  they  are  in  general  not  only  unequivocally  es- 
tablished  by  ample  testimony,  but  by  the  accordant  testimony  of 
the  witnesses  on  both  sides.     In  considering  the  relation  of  these 
facts  to  the  case  of  the  parties,  I  desire  the  jury  to  bear  in  mind 
certain  positions  which  have  been  already  established  by  the  high- 
est authority,  in  regard  to  the  duiies  of  the  moderator  and  clerks 
in  organizing  the  General  Assembly,  and  particularly  the  impera- 
tive obligation  resting  on   them  to   make  the  constitution  of  the 
church  their  guide,  and  the  necessity,  in  order  to  a  constitutional 
organization,  that  all  the  presbyteries  of  the  church  should  be  al- 
lowed their  proper  representation.     You  will  then  recollect  that  at 
the  close  of  the  religious  services,  after  the  prayer  at  the  opening 
of  the  Assembly,  Dr.  Patton  addressed  the  moderator,  proposing  to 
submit  to  the  house  certain  resolutions,  [see  page  85  of  this  report] 
the  purport  of  which  was  to  admit  to  their  seats  the  commissioners 
from  the  presbyteries  within  the  excinded  synods.     The  moderator 
hastily  refused  to  receive  his  motion  and  called  on  the  clerks  for 
the  roll,  denied  Dr.  Patton's  earnest  but  respectful  plea  that  as  his 
motion  related  to  the  roll  it  might  then  be  leceived ;  alleged  that 
the  floor  belonged  to  the  clerk,  though  reminded  by  Dr.  Patton  that 
he  first  possessed  it,  and  refused  to  put  to  the  house  the  appeal  of 
Dr.  Patton  from  his  decision  as  moderator. 

The  clerks  then  read  their  roll  of  members,  prepared  according 
to  their  pledge,  excluding  the  members  from  the  excinded  presby- 
teries. The  moderator  then  declared  that  this  selected  portion  of 
the  commissioners  would  be  considered  members  of  the  house,  and 
said  that  if  there  were  other  members  present,  whose  names  had 
not  been  entered  on  the  roll,  then  was  the  time  to  present  them,  in 
order  that  the  roll  might  be  completed.  On  this  call  it  was,  that 
Dr.  Mason,  another  acknowledged  member  of  the  house,  rose,  ten- 
dered the  commissions  from  the  excinded  districts  and  moved  that 
they  be  added  to  the  roll.  His  motion  also  the  moderator  declared 
to  be  out  of  order,  and  his  appeal  from  the  moderator's  decision 
that  officer  also  refused  to  entertain  or  to  put  to  the  house. 

But  here  the  ingenuity  of  the  counsel  on  the  other  side  have 
raised  a  question  whether  the  commissions  tendered  by  Dr.  Mason 
were  of  the  description  called  for  by  the  moderator.  According 
to  the  testimony  of  our  witnesses  and  the  acknowledged  practice 
in  such  cases,  he  called  for  such  commissions  as  were  not  yet  en- 
rolled.    This  had  been  usual,  and  he  was  understood  to  call  for 


297 

such  commissions  as  were  usually  called  for  by  the  moderator  on 
similar  occasions.  But  they  say  that  he  called  for  other  commis- 
sions, and  such  as  had  not  been  presented  to  the  clerks  and  rejected 
by  them.  It  is  well  for  you  to  understand  why  this  distinction  is 
made  by  them,  now. 

It  is  a  curious  fact,  that  during  the  investigation  of  the  facts  of 
this  case,  all  our  witnesses  testify  that  the  call  was  made  by  the 
moderator,  for  commissions  which  had  not  been  enrolled,  and  that 
fact  is  not  contradicted  by  the  witnesses  on  the  other  side,  though 
some  of  them  add  one  thing  and  some  another  to  these  words.  A 
minute  of  these  proceedings  was  afterwards  prepared  by  the  Old 
School  party,  which  is  in  evidence  before  the  jury.  Of  the  com- 
mittee which  prepared  that  minute  Dr.  Elliott  was  a  member,  and 
the  language  of  that  minute  fully  sustains  our  witnesses. 

The  language  of  Dr.  Elliott,  according  to  that  minute  on  this 
subject,  was,  "that  if  there  were  any  commissioners  present  from 
the  presbyteries  belonging  to  the  Presbyterian  Church  in  the  United 
States  of  America,  whose  names  had  not  been  enrolled,  then  was 
the  time  for  presenting  their  commissions."  There  is  no  difficulty 
at  all  in  this  matter.  The  moderator  called  for  commissions  which 
had  not  been  enrolled,  at  the  same  time  announcing  that  if  there 
were  any  such  that  was  the  time  to  present  them.  There  was  no 
irregularity  in  the  call  or  in  the  annunciation,  according  to  the  tes- 
timony of  our  witnesses,  or  to  the  record  of  the  Old  School. 

It  is  a  curious  fact,  also,  that  throwing  out  of  view  altogether  the 
testimony  of  our  witnesses,  they,  on  the  other  side,  give  us  three 
distinct  versions  of  this  matter. 

One  is  that  of  their  record,  which  I  have  read  to  you,  and  which 
is  explicit,  that  Dr.  Elliott  called  for  those  "  whose  names  had  not 
been  enrolled." 

Another  is  that  of  witnesses  whom  they  introduced  to  show  that 
Dr.  Elliott  said,  those  "whose  commissions  had  not  been  presented 
to  the  clerks." 

The  third  is  that  of  Dr.  Elliott  himself,  who  says  that  his  call 
was  for  those  "commissions  w^hich  had  not  been  presented  and 
enrolled." 

Dr.  Mason  then  was  in  order,  as  meeting  the  call  of  the  modera- 
tor, whether  you  take  the  language  of  that  call  from  our  witnesses, 
from  Dr.  Elliott  himself,  or  from  the  deliberate  and  matured  record, 
which  Dr.  Elliott  himself,  with  Dr.  Nott  and  others,  prepared,  and 
which  the  house  adopted  after  careful  and  critical  examination. 
So  he  was  in  order  indeed,  whether  such  call  had  been  made  by 
the  moderator  or  not.  The  constitution  of  the  church  itself  made 
it  in  order,  by  prescribing,  in  accordance  indeed  with  all  law  and 
all  usage  in  every  deliberative  body,  and  with  the  obvious  dictates 
of  common  sense,  that  the  receiving  of  commissions,  or  settling  the 
right  of  members  to  their  seats,  should  be  the  first  thing  attended  to. 

But  Dr.  Elliott  declared  him  out  of  order,  and  refused  both  to 
admit  his  motion  and  to  put  his  appeal.  In  regard  to  the  language 
employed  by  Dr.  Elliott  on  this  occasion  also,  a  slight  difference 
exists  in  the  testimony,  which  would  hardly  seem  worthy  of  notice, 


298 

but  that  an  attempt  is  made  on  the  other  side  to  give  it  importance. 
Our  witnesses  understand  Dr.  Elliott  simply  as  saying  "  You  are 
out  of  order;"  and  their  witnesses  understand  him  to  say  "You  are 
out  of  order  at  this  time,'^  or,  "  You  are  out  of  order,  Sir."  Some 
of  their  witnesses  giving  one  form  of  expression,  and  some  of  them 
the  other.  But  Dr.  Elliott  himself,  who  of  all  men  ought  to  know- 
best  what  were  the  words  he  used,  tells  you  distinctly,  "I  then  staled 
to  him  that  he  was  out  of  order  at  this  time,  or  now,  using  one  or 
the  other  of  these  forms  of  expression."  These  are  Dr.  Elliott's 
own  words,  and  though  he  differs  from  most  of  their  witnesses,  yet 
he  is  not  certain  what  was  the  exact  form  of  expression  which  he 
used.  It  is  but  reasonable  to  conclude,  however,  that  his  recollec- 
tion of  the  particular  phraseology  which  he  himself  used,  is  quite  as 
perfect  as  the  recollection  of  the  others,  and  yet  when  he  says  that 
he  used  "one  or  the  other  of  these  forms  of  expressions,"  he  admits 
that  he  is  not  positively  certain  that  he  used  either  of  them.  Dr. 
Elliott's  testimony  goes  very  far  towards  explaining  the  whole  mys- 
tery. It  sutliciently  proves  that  the  Old  School  party  were  so  ex- 
cited and  confused  at  the  time,  that  they  have  no  distinct  recollec- 
tion of  what  transpired, — and  it  is  thus  confirmatory  of  the  testimo- 
ny of  our  witnesses.  If,  however,  there  is  any  discrepancy,  it  is 
among  their  witnesses,  and  not  ours,  for  they  all  agree. 

The  commissions  tendered  to  the  moderator  by  Dr.  Mason  had 
not  been  presented  to  the  clerks  and  enrolled,  for  the  clerks  refused 
to  either  receive  or  enrol  them  when  they  were  presented,  and 
therefore  they  were  precisely  such  as  the  moderator  called  for,  and 
neither  he  nor  they  had  any  right  to  refuse  them.  Besides,  how  is 
it  possible  to  suppose  that  Dr.  Elliott  discriminated  in  his  call  for 
commissions  between  those  which  had,  and  those  which  had  not, 
been  presented  to  the  clerks,  and  refused  1  They  had  not  reported 
that  any  had  been  so  presented.  They  had  no  authority  to  refuse 
any,  or  dispose  of  any  presented  to  them,  in  any  other  way  than  to 
report  them  to  the  house,  either  as  regular,  and  therefore  enrolled, 
or  irregular,  and  therefore  to  go  to  the  Committee  of  Elections,  or 
be  otherwise  disposed  of  by  the  house.  Nor  had  such  an  occur- 
rence ever  before  existed.  How  then  could  Dr.  Elliott  frame  his 
call  with  reference  to  the  exclusion  from  its  import  of  such  com- 
missions? Dr.  Patton's  resolutions,  you  will  recollect,  had  not  been 
read,  or  the  subject  of  them  announced  to  the  house,  only  that 
"they  related  to  the  formation  of  the  roll,"  not  a  word  about  com- 
missions presented  to  the  clerks,  or  commissions  from  the  ex- 
cinded  synods.  If,  then,  the  other  side  will  have  it,  that  Dr.  Elliott 
framed  his  call  designedly,  as  some  of  their  witnesses  allege,  to 
exclude  these  commissioners,  they  have  no  alternative  but  to  admit 
that  it  proves,  what  they  have  so  stoutly  denied,  that  this  was  the 
carrying  out,  by  the  moderator  and  clerks,  of  the  excinding  acts  of 
1837,  agreeably  to  their  pledge,  a  fact,  however,  which  is  amply 
proved  without  this  admission,  and  proved  at  every  step  of  the 
whole  proceedings. 

But  again.  Dr.  Elliott  does  not  at  any  time  assign  as  a  reason 
for  rejecting  those  commissions  that  they  were  such  as  had  been 


299 

presented  to  the  clerks  and  refused,  and  therefore  were  not  in  order, 
but,  they  were  from  the  excinded  synods — he  did  not  know  them. 
The  moderator  then,  instead  of  receiving  these  commissions,  as  it 
was  his  duty  to  do,  inquired  of  Dr.  Mason  "where  those  commis- 
sions were  from ;"  and  Dr.  Mason  replying  that  they  were  from 
presbyteries  within  the  bounds  of  the  Synods  of  Utica,  Geneva, 
Genessee,  and  the  Western  Reserve,  the  moderator  declared  him 
out  of  order,  and  when  he,  in  a  very  respectful  manner,  appealed 
from  the  decision,  the  moderator  declared  the  appeal  to  be  out  of 
order,  and  refused  to  put  it  to  the  house.  Did  the  moderator  assign 
any  reason  why  he  declared  Dr.  Mason  to  be  out  of  order?  He 
did  not.  He  is  silent  as  to  that.  He  did  not  say  that  he  had  called 
for  commissions  of  a  different  kind.  He  did  not  assign  even  that 
as  a  reason  for  his  conduct.  But  whether  they  were  .called  for  or 
not,  is  not  material  to  the  issue  of  this  case.  They  were  in  regular 
form,  and  were  not  reported  by  the  clerks  as  being  either  irregular 
or  disputed  commissions,  and  Dr.  Mason,  or  any  other  member  of 
the  General  Assembly,  had  a  right  to  present  them  to  the  house 
without  any  call  having  been  made  by  the  moderator.  The  call  of 
the  moderator  for  other  commissions,  though  usual  in  such  cases  in 
the  Assembly,  was  not  essential,  and  might  have  been  dispensed 
with.  It  is  a  question  of  privilege  which,  in  all  deliberative  bodies, 
takes  precedence  of  all  others,  and  is  always  in  order.  Whenever 
such  a  question  is  introduced,  (and  a  question  of  privilege  may  be 
raised  by  any  member  of  the  body  and  at  any  time)  it  puts  a  stop 
to  all  other  proceedings  until  it  is  settled.  The  question  of  privilege 
must  be  determined  before  the  house  can  proceed  with  its  ordinary 
business,  so  that  Dr.  Mason,  or  any  other  member,  had  a  right  to 
be  heard  in  presenting  those  commissions,  even  if  it  conflicted  (which 
it  did  not  in  this  case)  with  an  ordinary  rule  of  order,  such  as  the 
standing  and  particular  rules  adopted  by  the  Assembly  for  the  trans- 
action of  business.  Those  rules  not  being  constitutional  provisions, 
are  subject  to  the  will  of  the  house;  and  no  rule  of  order  can  be  in- 
terposed to  prevent  the  settlement  of  a  question  of  privilege. 

I  must  illustrate  this  point.  I  am  sorry,  but  so  the  other  side  have 
chosen,  to  decide  this  whole  case  on  a  mere  point  of  order.  They 
hang  the  whole  cause  on  the  construction  of  a  rule  of  mere  parlia- 
mentary order.  Since  so  they  will  have  it,  we  must  meet  the  point 
which  they  make  on  that  ground. 

I  have  already  remarked,  gentlemen,  that  the  constitution  re- 
quires, as  does  every  principle  of  right,  and  of  common  sense,  that 
the  first  business  in  organizing  the  Assembly  should  be  the  recep- 
tion of  commissions  or  settling  the  right  of  com.missioners  to  a  seat 
in  the  body.  Any  rule  contradicting  this  would  of  course  not  be 
binding.  On  this  ground  then,  the  motion  of  Dr.  Mason  was  in 
order.  It  was  also  in  order  as  a  question  of  privilege.  The  rights 
of  persons  claiming  as  members  of  the  house  were  alleged  to  be 
invaded.  Whether  they  were  really  so  or  not  was  immaterial  to 
the  order  of  the  question  of  privilege.  It  was  indeed  the  very  thing 
to  be  settled  by  that  question.  That  question  Dr.  Mason,  an  ac- 
knowledged member,  raised  in  behalf  of  these  commissioners,  and, 


300 

according  to  all  parliamentary  law,  there  was  no  other  question 
which  could  supersede  this,  nor  any  ground  on  which  it  could  be 
set  aside  till  it  was  settled.  You  will  observe  the  distinction  be- 
iv/een  this  and  what  are  termed  "privileged  questions."  These 
are  questions,  which  according  to  the  rules  of  the  house  may  come 
in  at  a  certain  time,  or  in  a  certain  order,  or  at  the  will  of  a  mem- 
ber, as  the  case  may  be,  superseding  ordinary  business  which  may 
be  on  hand  at  the  time,  or  setting  aside  certain  other  questions 
v.'hich  may  be  before  the  body  at  the  time.  They  are  the 
subject  of  rules  adopted  for  convenience,  facility  or  order  in  the 
transaction  of  business.  But  a  "question  of  privilege"  is  a  ques- 
tion of  right,  a  question  touching  the  personal  rights,  privileges  or 
relations  of  the  house  or  any  member  of  the  house,  or  the  rights  of 
constituents  through  their  representatives. 

It  is  a  just  and  equal  law  which  makes  it  necessary  to  decide  a 
question  of  privilege  as  soon  as  it  is  presented  to  the  house,  and  be- 
fore any  other  business  shall  be  proceeded  in,  and  which  thus  puts 
it  out  of  the  powei  of  a  m.ijority  to  subserve,  by  stratagem,  the 
designs  of  a  party,  by  keeping  out  of  the  house  a  part  of  the  mem- 
bers duly  elected  by  their  constituents. 

Finding  that  the  common  law  will  not  sustain  them,  the  other 
party  resolved  to  resort  to  a  point  of  parliamentary  law  in  their 
defence.  But  this  case  is  lost  to  them  if  it  is  to  be  decided  as  they 
have  put  it,  on  a  point  of  order.  It  must  go  against  them  on  any 
principle  of  order,  or  of  parliamentary  law. 

They  were  acting  in  open  violation  of  parliamentary  law,  as 
well  as  the  constitution  of  their  church  and  the  law  of  the  land. 

According  both  to  the  constitution  of  the  Presbyterian  Church, 
and  to  all  parliamentary  law,  this  was  a  question  vital  to  the  in- 
tegrity of  the  body,  to  its  very  existence  as  a  lawful  Assembly. 
Privileged  questions  and  rules  of  order  adopted  for  regulating  the 
transaction  of  business,  may  be  waived  by  the  house  without  vio- 
lating its  own  integrity.  The  standing  rules,  as  they  are  termed, 
of  the  Assembly,  not  being  of  constitutional  force,  and  being  in  fact 
adopted  by  each  Assembly  for  itself,  though  in  general  they  ought 
to  be  observed,  may  yet  be  violated  forty  times  in  a  day  without  in- 
validating the  acts  of  the  Assembly.  But  a  question  of  privilege 
cannot  be  put  aside  for  any  consideration ;  and  the  highest  of  all 
cjuestions  of  this  character,  is  that  which  involves  the  right  of  a 
member  to  his  seat,  and  the  right  of  his  constituents  to  be  repre- 
sented. 

The  election  of  the  commissioners  was  an  act  of  the  presbyteries, 
and  they  had  a  just  right  to  complain  of  the  clerks  for  refusing  to 
receive  their  representatives.  The  clerks  neither  reported  them  as 
being  enrolled,  nor  yet  as  informal  commissions.  The  presbyteries 
had  also  good  right  to  complain  of  the  moderator  for  endeavouring 
to  exclude  their  representatives.  Never  before  was  such  a  double 
violation  of  law  and  order,  such  a  gross  infraction  of  the  most 
sacred  rights  of  members  and  constituents,  perpetrated  by  the  officers 
of  any  deliberative  body,  ecclesiastical  or  civil,  amongst  any  peo- 
ple.    History  does  not  furnish  a  parallel  case. 


301 

But  here  comes  in  that  other  small  matter.  It  is  said  that  the 
moderator  qualified  the  declaration  by  saying  "  now,"  or  "  al  this 
time."  Whether  he  did  so,  is,  you  have  seen,  from  the  various  ac- 
counts of  their  own  witnesses,  a  matter  of  doubt.  But  what  if  he 
did?  There  is  nothing  very  unusual  in  this  mode  of  declaring  a  ques- 
tion out  of  order.  There  is  nothing  in  it  affecting  the  nature  of  the 
decision.  The  other  side,  however,  tell  you,  that  it  was  an  intima- 
tion that  if  he  would  only  wait  some  five  minutes,  his  motion  would 
be  in  order.  Did  Dr.  Elliott  mean  to  intimate  any  such  thing?  If 
he  did,  then  he  admitted  that  the  motion  was  a  legitimate  motion, 
one  which  might  properly  be  brought  by  a  member  before  that  body. 

Now,  what  was  the  motion?  It  was  not  a  motion  asking  admis- 
sion into  the  church,  under  the  acts  of  1837,  but  against  those  acts. 
It  was  not  an  acknowledgment  of  the  justice  or  validity  of  those 
acts  of  excision,  by  which  they  were  declared  to  be  no  longer  a 
portion  of  the  Presbyterian  Church.  It  was  not  a  confession  that 
they  were  guilty  of  heresy  and  apostacy,  and  a  profession  of  sor- 
row and  repentance,  and  asking  forgiveness  of  these  Old  School 
men,  with  an  humble  petition  that  they  would  "  take  proper  order 
thereon."  But  it  was,  according  to  Dr.  Elliott's  own  testimony,  a 
motion  to  complete  the  roll  by  adding  thereto  the  names  of  the  com- 
missioners from  those  excinded  presbyteries,  whose  commissions 
had  been  refused  by  the  clerks.  Now,  if  Dr.  Elliott  said  the  motion 
is  out  of  order  now,  but  there  is  a  time  approaching  when  it  will  be 
in  order,  he  admitted  that  it  was  a  legitimate  motion.  And  that  it 
was  a  legitimate  motion  there  can  be  no  doubt,  for  the  excinding 
acts  of  1837  were  utterly  null  and  void,  as  much  so  as  an  act  of 
Congress  declaring  the  states  of  Pennsylvania,  Ohio,  and  Ken- 
tucky, out  of  the  Union,  would  be  null  and  void. 

Well  then  if  the  motion  was  in  order  at  anytime,  it  was  in  order 
at  this  time,  when  Dr.  Mason  moved  it.  Then  was  the  very  time, 
and  the  only  proper  time  for  "  receiving  commissions  to  com- 
plete the  roll." 

One  of  the  standing  regulations  of  the  Assembly  as  published  in 
the  "  Digest,"  which  is  in  evidence  in  this  case,  is  that  "  the  list  of 
commissioners  present  being  completed,  a  new  moderator  is 
chosen."  I  read  from  the  Digest,  page  17.  Another  of  those  regu- 
lations, on  page  19  of  the  same  book  is,  that  "commissioners  who 
do  not  produce  their  commissions  at  the  opening  of  the  Assembly, 
can  be  received  only  at  the  commencement  of  a  session."  So  that 
if  Dr.  Mason  had  not  made  his  motion  precisely  when  he  did,  the 
opportunity  would  have  been  lost.  Having  admitted  such,  and 
such  only,  as  the  officers,  under  a  party  pledge,  saw  fit  to  admit, 
Dr.  Elliott  would  have  declared  the  roll  to  be  completed,  and  they 
would  have  proceeded  1o  the  choice  of  a  new  moderator,  and 
might  have  transacted  other  business,  the  most  important  of  the 
Assembly,  before  the  commencement  of  another  session,  when  only, 
if  ever,  an  opportunity  would  again  occur  for  offering  these  com- 
missions. 

Thus  might  the  constituent  presbyteries    be   deprived   of  their 
most  inestimable   rights,  and   their   commissioners  be   precluded 
26 


302 

from  the  discharge  of  iheir  most  important  duties.  And  you  will 
remark,  gentlemen,  that  if  this  course  could  with  impunity  be  pur- 
sued in  relation  to  these  commissioners,  it  might  equally  in  relation 
to  any  others.  Thus  the  doctrine  set  up  in  defence  of  this  pro- 
cedure, is  shown  to  assert  a  more  arbitrary  power  over  a  delibe- 
rative and  representative  body,  than  ever  was  claimed,  or  than 
would  even  be  tolerated  in  the  most  absolute  despotism  on  earth. 
Does  any  one  believe  that  this  is  Presbyterianism — that  such  domi- 
nation of  official  tyranny  is  sanctioned  by  the  constitution  of  that 
church,  a  church,  which,  in  this  land  of  equal  laws,  makes  so  loud 
claims,  as  you  have  heard  from  the  learned  counsel  on  the  other 
side,  to  be  the  patron  of  liberty !  No,  gentlemen.  That  was  the 
time  to  make  the  motion  which  Dr.  Mason  made,  and  the  mode- 
rator had  no  right  to  declare  it  out  of  order.  Dr.  Mason  knew  this, 
and  he  appealed  from  the  decision  of  the  chair.  His  appeal  also 
was  refused,  and  declared  to  be  out  of  order.  And  under  what 
pretence  ?  What  reason  did  the  nioderator  assign,  for  declaring 
ihe  motion  and  the  appeal  to  be  out  of  order?  They  cannot  at- 
tempt to  excuse  Dr.  Elliott's  conduct  in  this  case,  as  in  that  of  Dr. 
Palton's  motion  and  appeal,  by  saying  that  their  was  no 
house.  The  roll  had  now  been  read,  and  their  picked  company 
had  been  declared  to  be  the  house,  at  least  far  enough  to  proceed 
in  completing  the  roll.  Dr.  Elliott  says  he  had  entertained  a  mo- 
tion for  the  appointment  of  a  committee  of  elections.  It  was  not, 
then,  because  there  was  "  no  house."  The  truth  is,  that  neither  Dr. 
Elliott  nor  the  clerks,  assigned  any  reason  whatever  for  their  con- 
duct. If  that  conduct  had  a  single  reason  in  its  favour,  which  would 
bear  the  light,  I  doubt  not,  it  would  have  been  assigned. 

The  refusal  of  the  moderator  was  in  violation  of  all  law,  parlia- 
mentary law  as  well  as  every  other.  His  refusal  to  put  to  the  house 
the  appeal  from  his  decision,  was  probably  the  first  example  of  that 
kind  of  assumption  of  arbitrary  power  in  a  moderator  of  a  deliberative 
body,  which  has  occurred  in  the  history  of  the  whole  civilized  world. 
I  defy  any  one  to  show,  any  where,  a  power  in  the  moderator  or 
presiding  officer  to  refuse  to  put  the  house  in  possession  of  an  appeal 
from  his  decision.  There  was  no  right  or  power  in  the  majority 
to  exclude  those  persons  who  were  lawfully  entitled  to  seats;  and 
if,  on  any  ground,  there  was  a  question  whether  they  were  so  enti- 
tled, the  only  possible  w^ay  in  which  that  question  could  be  tried, 
was  by  bringing  such  a  motion  as  that  of  Dr.  Mason  before  the 
house,  which  we  have  seen  was,  for  any  such  purpose  as  this,  fully 
organized.  This  step  of  the  moderator  in  refusing  the  appeal,  may 
find  one,  and  only  one  rule  that  I  know  of,  for  its  justification,  and 
that,  much  more  fitting  the  circumstances  of  the  Roman  Emperor, 
whose  rule  it  was,  than  the  position  of  a  moderator  of  a  Presbyte- 
rian judicatory  in  the  United  States  of  America. 

"Sic  volo,  sic  jubeo,"  is  the  rule  by  which  a  tyrant  tramples  on 
the  rights  of  his  people  when  they  become  his  slaves.  Denying  the 
appeal  in  this  case,  was  the  tyranny  of  arbitrary  despotism.  It 
showed  a  consciousness,  that  carrying  out  the  principles  to  which 
ihey  were  pledged,  required  the  sacrifice  of  constitutional  principles, 


303 

and  on  this  ground,  it  accounts  for  the  violent  passion  into  which 
Dr.  Elliott  and  his  party  were  thrown. 

Our  party  were  all  mild  and  courteous  in  their  proceedings.  Dr. 
Elliott's  own  testimony  shows  this:  so  does  that  of  other  witnesses 
on  that  side,  as  well  as  our  own.  The  testimony  of  their  witnesses 
even  exonerates  our  party  from  the  charge  of  all  indecorum  and  tu- 
mult, throughout  the  whole  proceedings  up  to  the  time  of  our  adjourn- 
ment, except  the  single  sin  that  some  of  us  voted  "  aye"  louder  than 
we  need  to  have  done  in  order  to  be  heard,  and  one  person  so  loud 
that  "  he  might  even  have  been  heard  tlie  whole  distance  from  one 
side  of  Washington  Square  to  the  other!"  that  is,  some  50  or  60  rods, 
or  across  a  12  acre  lot.  But  the  mind  of  the  moderator,  in  sym- 
pathy with  his  belligerent  partisans,  was  undergoing  a  change.  It 
was  losing  its  equable  temperament.  It  was  the  change  which  the 
consciousness  of  an  attempted  perpetration  of  wrong  produces  in  the 
perpetrator  of  that  wTong,  when  he  sees,  that  those  against  whom 
it  is  attempted  maintain  a  mild  but  firm  deportment,  and  in  a 
steady  adherence  to  the  right,  are,  by  peaceful  means,  averting  the 
injury  intended  for  them.  Such  circumstances  are  greatly  calcu- 
lated to  excite,  and  hence  is  it  accounted  for  that  Dr.  Elliott  was  so 
wrought  up,  that  he  could  meet  the  courteous  advances  of  Mr. 
Squier  with  that  tremendous  denunciation,  which,  had  he  completed 
the  quotation,  would  have  only  more  perfectly  expressed  the  feelings 
which  seemed  to  predominate  on  that  occasion.  Dr.  Elliott  was 
called  a  moderator.  I  leave  it  to  you.  gentlemen,  to  say,  if  he  did 
not  furnish  a  wonderful  example  of  ini-moderation. 

Will  any  one  deny  that  he  was  in  a  passion  ?  Look  at  the  facts  in 
the  case  of  Mr.  Squier.  In  a  respectful  manner  he  presents  his  com- 
mission, when  the  house  was  properly  organized  so  far  as  related  to 
the  reception  of  commissions,  though  it  could  not  properly  transact 
other  business.  The  moderator  had  called  for  commissions  from  com- 
missioners whose  names  had  not  been  enrolled.  But  instead  of  re- 
ceiving his  commission,  the  moderator  asked  him  from  what  presby- 
tery he  came.  Mr.  Squier  replied,  "From  the  Presbytery  of  Geneva." 
The  moderator,  not  yet  satisfied,  queried  if  that  presbytery  belonged 
to  the  Synod  of  Geneva.  And  on  Mr.  Squier's  informing  him  that 
the  Presbytery  of  Geneva  was  within  the  bounds  of  the  Synod  of 
Geneva,  he  insultingly  replied,  "  We  do  not  know  you!" 

A  partial  countenance  had  been  given  to  Mr.  Squier's  demand 
by  the  moderator  asking  him  from  what  presbytery  he  came, 
thereby  signifying  that  if  he  came  from  the  right  place  his  request 
or  demand  should  be  complied  with.  But  ascertaining  that  he  was 
from  the  proscribed  or  infected  district,  he  passionately  exclaimed, 
"  We  do  not  know  you'''  He  did  not  mean  that  he  did  not  know  the 
man,  for  he  tells  you  that  he  had  formerly  been  acquainted  with 
Mr.  Squier.  When  Dr.  Elliott  said  "We  do  not  know  you,"  he 
did  not  allude  to  Mr.  Squier  personally,  but  he  undoubtedly  had  a 
more  extensive  allusion.  He  meant  to  include  all  the  proscribed, 
the  whole  five  hundred  and  nine  ministers  and  the  sixty  thousand 
members  within  the  infected  district,  composing  the  four  excinded 
synods.     What  then  did  the  moderator  mean  bv  exclaiminff  "  We 


304 

do  not  know  you."  What  could  he  mean,  unless  he  meant  to  apply 
to  those  whom  they  had  declared  to  be  excinded,  cut  off"  from  the 
communion  of  the  church,  that  awful  denunciation  to  which  I  have 
before  alluded? 

Now  why  should  the  Rev.  Dr.  Elliott,  presiding  over  the  admis- 
sion of  members  to  the  General  Assembly  of  the  Presbyterian 
Church  address  such  language  to  Mr.  Squier  and  his  friends? 

There  can  be  no  other  reason  assigned  than  that  he  and  his  party 
had  forsaken  the  light,  or  that  they  had  so  far  given  way  to  feelings 
of  excitement  and  passion,  that  the  light  in  them  had  become  dark- 
ness. 

Was  ever  such  a  course  pursued  by  the  presiding  officer  of  any 
deliberative  body,  ecclesiastical  or  civil,  against  a  person  on  the 
floor,  for  claiming  his  seat  as  a  member  of  the  house  ?  Show  me,  if 
you  can,  any  precedent  in  book,  bound  or  half  bound,  large  or  small, 
printed  or  in  manuscript,  in  parliamentary  law  or  usage,  where  the 
president  or  speaker  has  dared  to  address  any  one  in  such  a  harsh 
and  unfeeling  manner.  The  historical  records  of  the  world  from 
its  creation  to  the  memorable  year  1837  do  not  furnish  such  a  pre- 
cedent. I  do  however  recollect  one  case  in  point — and  the  only 
one,  I  believe,  that  the  history  of  the  world  has  yet  furnished — of  the 
presiding  officer  of  a  deliberative  body  attacking  a  member  on  the 
floor  of  the  house,  merely  because  he  might  take  exception  to  the 
proposition  submitted  to  him  by  the  member.  The  only  case  in 
point  of  which  I  ever  heard,  transpired  in  the  legislature  of  one  of 
the  south-western  states  of  this  confederacy,  the  new  state  of  Ar- 
kansas. I  am  not  certain  but  it  occurred  since,  and  that  this  case 
of  Dr.  Elliott's  was  its  precedent.  The  speaker,  in  that  case,  how- 
ever, taking  offence  at  something  which  was  said  by  one  of  the 
members,  which  he  deemed  personally  disrespectful  to  himself,  got 
into  a  passion,  whipped  out  his  howie  knife,  rushed  from  the  chair, 
attacked  the  offending  member  on  the  floor  of  the  house,  and  mur- 
dered him  on  the  spot.  And  then,  I  suppose,  turned  round  and 
said,  "  I  do  hope  we  shall  have  order !" 

The  moderator  then  had  been  guilty  of  misconduct  which  me- 
rited removal.  He  had  assumed  an  attitude,  which,  if  he  were 
allowed  to  hold  it,  would  not  only  prostrate  the  dignity  and  self- 
respect  of  the  body  over  which  he  presided,  but  would  defeat  the 
constitutional  organization  of  that  body ;  and  if  he  had  so  chosen, 
by  carrying  out  the  same  principle,  he  might  have  entirely  defeated 
the  appointment,  at  any  time,  of  a  moderator  in  his  place.  He  had 
only  to  refuse  to  put  such  motions  as  were  off'ensive  to  him,  to  de- 
clare them  out  of  order,  and  refuse  to  put  to  the  house  appeals 
from  his  decision,  (and  he  might  do  it  in  any  other  case  as  well  as  in 
these)  and  thus  make  himself  not  only  dictator,  but  perpetual  dicta- 
tor to  the  General  Assembly.  Was  there  no  remedy  for  such  a 
state  of  things  ?  There  was  a  remedy  and  it  is  rather  wonderful 
that  it  was  forborne  so  long.  He  was  liable  at  any  time  to  be  re- 
moved, or  to  have  another  appointed  in  his  place.  Those  whose 
rights  were  thus  outraged  deferred  action  of  this  kind  long  enough. 
The  moderator  had  refused  to  receive  motion  after  motion,  and 


305 

denied  that  most  sacred  right,  so  strongly  and  explicitly  guarantied 
by  the  constitution  to  every  member,  the  right  of  appeal  to  the 
house,  from  the  decisions  of  its  presiding  officer,  and  finally  told 
Mr.  Squier  that  he  did  not  know  him,  and  he  might  go — I  will  not 
say  where;  but  the  language  of  the  moderator  was  equally  as  vio- 
lent and  offensive  'as  if  he  had  completed  the  quotation  of  the  de- 
nunciatory sentence.  He  had  only  to  go  one  step  further  to  come 
fully  up  to  the  only  similar  exhibition  which  the  world  has  witnessed 
in  a  presiding  officer  of  a  deliberative  body;  and  that  was  to  have 
attacked  Mr.  Squier,  personally,  with  any  weapon  that  he  could 
lay  his  hand  on. 

Immediately  after  this  last  outrage  of  the  moderator,  finding  that 
all  appeals  to  justice  or  magnanimity  were  entirely  disregarded  by 
their  adversaries,  and  that  they  had  nothing  to  expect  from  them 
but  repeated  acts  of  injustice,  the  friends  of  constitutional  order 
deemed  it  necessary  to  exert  a  prerogative  higher  than  submission 
to  unlawful  acts  of  usurpation.  Accordingly,  Mr.  Cleaveland  rose 
and  commenced  making  a  few  preliminary  remarks,  explanatory 
of  a  motion  which  he  was  about  to  make  and  put  to  the  house. 
But  no  sooner  was  it  perceived  that  he  alleged  the  misconduct  of 
the  moderator,  as  sufficient  cause  for  his  removal  by  the  appoint- 
ment of  another,  than  a  scene  of  confusion  occurred,  which  baffles 
description — which  reminds  one  of  the  scene  described  by  Burke 
as  having  taken  place  in  the  Irish  house  of  commons,  when  Jack 
Fuller,  the  little  man  with  the  big  wig,  having  insulted  the  speaker, 
was  ordered  to  be  arrested  by  the  sergeant-at-arms,  he  started  for 
the  door,  and  a  race  commenced,  helter  skelter  over  the  forms  and 
benches,  and  overturning  the  desks  which  stood  in  their  way,  until 
he  finally  escaped  from  the  hall,  minus  his  cloak. 

Now  came  the  occasion,  which,  it  seems,  had  been  anticipated  as 
likely  to  result  from  the  usurpations  of  the  moderator,  and  to  meet 
which  the  morning  had  been  spent  in  marshaling  the  troops.  Now 
was  put  in  requisition  the  hammer  of  the  moderator,  the  stentorian 
lungs  of  those  who  were  to  cry,  in  trumpet  tones,  "order!  order!" 
the  stamping  of  others  with  their  feet,  the  scraping  and  shuffling  of 
others,  the  rapping  with  canes,  the  cries  of  "  shame  !  shame  !"  and 
the  peculiar  corigh  which  put  in  requisition  the  talents  of  the  sur- 
geon-general. Dr.  Harris. 

All  this  ado  was  made  to  drown  the  voice  of  Mr.  Cleaveland,  or 
prevent  themselves  from  hearing;  and  though  not  entirely  success- 
ful, yet  it  was  so  far,  that  they  are  able  to  come  here  and  testify, 
very  truly,  no  doubt,  that  there  was  a  great  uproar  and  confusion. 
Unfortunately  for  them,  the  evidence  is  full  and  conclusive  that  they 
made  the  tumult  themselves.  Mr.  Cleaveland,  favoured  with  a  full 
and  clear  voice,  continued,  till  at  length,  finding  their  uproar  vain 
to  stay  the  course  of  right  and  equitable  action,  and  being  hushed 
by  some  of  the  more  quiet  spirits  of  their  own  party,  the  Old  School 
members  ceased  their  noise,  and  allowed  Mr.  Cleaveland  to  put  his 
motion.  This  and  the  several  successive  motions  were  regularly 
put,  seconded  and  carried,  as  was  detailed  to  you  in  the  testimony,. 

26* 


306 

completing  the  organization  of  the  Assembly  of  1838,  on  the  prin- 
ciples of  the  constitution  of  the  church. 

You  will  remark  here,  that  by  the  constitution,  the  offices  of  Dr. 
Elliott  were  not  necessary  to  the  organization  of  the  Assembly. 
The  constitution  prescribes  simply  that  "  the  moderator,  or  in 
case  of  his  absence  another  member  appointed  for  the  purpose,  shall 
open  the  next  meeting  with  a  sermon,  and  shall  hold  the  chair  till  a 
new  moderator  be  chosen."  Form  of  Government,  chapter  19, 
section  3d.  This  article  relates  to  the  moderators  of  presbyteries, 
synods  and  General  Assemblies.  In  the  article  respecting  the 
General  Assembly,  is  a  similar  provision  in  these  words,  chapter  12, 
section  7.  "  The  moderator  of  the  last  Assembly,  if  present,  or  in 
case  of  his  absence,  some  other  minister,  shall  open  the  meeting  with 
a  sermon,  and  preside  till  a  new  moderator  be  chosen."  Now,  ac- 
cording to  the  terms  of  the  constitution,  all  that  was  necessary  in 
regard  to  an  officer  to  preside  in  organizing  the  Assembly,  was,  that 
a  minister,  being  a  member  of  the  Assembly,  appointed  for  the 
purpose,  should  so  preside,  or  if  the  moderator  of  the  last  Assembly 
should  be  present,  he  might  preside,  though  not  a  member  of  the 
Assembly  for  the  current  year.  The  object  of  so  presiding,  is 
obviously,  and  simply,  to  act  as  the  organ  for  ascertaining  the 
will  of  the  forming  body,  till  it  has  expressed  that  will,  in  the 
appointment  of  a  member  as  its  moderator.  What,  then,  ac- 
cording to  the  constitution,  would  have  occured  if  at  the  opening 
of  the  Assembly  of  1838,  Dr.  Elliott  had  not  been  present? 
Why,  the  members  then  assembled  would  have,  at  the  motion  of 
some  member,  to  designate,  that  is  to  appoint  one  of  their  own 
number,  as  is  usual  in  other  bodies,  so  assembling,  to  preside  till  the 
permanent  moderator  for  that  Assembly  was  elected.  This  is  ac- 
cording to  the  constitution.  True,  according  to  a  rule  recommended 
by  a  previous  Assembly,  to  their  judicatories,  the  last  moderator 
present  would  so  preside.  But  that  rule  is  not  obligatory  upon  the 
Assembly,  or  any  other  judicatory,  unless  they  choose  lo  adopt  it. 
But  if  the  rule  were  obligatory;  suppose  no  individual  present  had 
previously  been  moderator  of  the  Assembly,  a  case  always  liable  to 
occur,  then  clearly  the  body  of  the  commissioners  are  thrown  back 
upon  the  constitution,  and  must  designate  the  individual  to  preside 
till  the  new  moderator  be  chosen.  It  is  obvious,  then,  that  the  ser- 
vices of  the  previous  moderator  are  not  essential  to  the  constitutional 
organization  of  the  Assembly.  The  members  had  an  undoubted 
right  to  call  another  member  to  the  chair;  the  right  to  change  their 
presiding  officer  being  indisputably  inherent  in  every  representa- 
tive, deliberative  body,  who  choose  their  own  president  or  mode- 
rator. If  they  had  said,  in  the  first  place,  that  Dr.  Beman  or  any 
one  else,  should  be  moderator  to  the  exclusion  of  Dr.  Elliott,  they 
had  a  perfect  right  to  do  so,  as  he  was  to  preside  only  until  another 
moderator  should  be  chosen.  Whenever  that  choice  was  expressed, 
his  official  duty  ceased.  But  our  opponents  now  pretend  to  say 
that  he  could  not  be  put  out  until  he  consented  to  it!     Absurd! 

Why,  even  if  no  misconduct  had  been  alleged,  or  could  be  al- 
leged against  the  moderator,  he  was  subject  to  be  removed  at  any 


307 

lime.     But,  he  had  been  guilty  of  misconduct,  gross  misconduct, 
and  was  therefore  liable  to  be  removed  on  that  ground. 

The  right  to  remove  a  presiding  officer  will  not  be  doubted  by 
any  one  conversant  with  parliamentary  law.  There  is  an  instance 
in  English  history  of  a  motion  being  made  in  the  house  of  commons 
to  remove  the  speaker.  (I  am  not  able  to  cite  an  instance  in  our 
own  country.  There  may  have  been,  but  I  do  not  recollect  any  at 
present.)  In  the  year  1773,  a  motion  was  made  in  the  house  of  com- 
mons, that  the  speaker  be  removed,  which  motion  was  received  and 
put  to  the  house,  but  it  was  not  carried.  The  majority  voted  against 
it,  but  the  right  was  acknowledged  to  exist,  as  fully  as  if  the  ques- 
tion had  been  decided  in  the  affirmative,  and  if  there  had  been  a 
majority  in  favour  of  the  motion  he  would  undoubtedly  have  been 
removed,  ft  must  be  evident  to  all,  that  if  a  speaker,  president,  or  other 
presiding  officer  of  a  legislative  or  deliberative  body  were  guilty  of 
misconduct  in  office;  if  he  had  exerted  the  whole  of  his  influence 
in  favour  of  a  party  ;  if  he  showed  his  determination  to  carry  out 
the  designs  of  that  party  by  assuming  authority,  which  was  unlaw- 
ful and  unconstitutional ;  if  he  did  this  in  obedience  to  a  pledge 
which  he  had  previously  given  to  that  party,  and  if  he  were  to  re- 
fuse to  receive  a  motion  or  put  an  appeal,  and  refuse  to  admit  a 
member  duly  elected  by  his  constituents  to  his  seat  in  the  house, 
there  would  be  sufficient  cause  for  his  removal,  and  that  house 
which  would  not  promptly  remove  him  from  office,  would  be  un- 
worthy of  respect.  The  moderator  did  assume  such  despotic 
authority.  He  i/;a5  thus  guilty  of  gross  misconduct.  His  removal 
was  necessary.  The  house  had  a  right  to  remove  him,  and  he 
was  removed.  That  he  was  lawfully  removed  I  will  now  proceed 
to  show. 

The  sense  of  the  house  can  only  be  ascertained  by  its  vote.  In 
no  other  way  can  its  intentions  become  known  even  to  the  house 
itself  If  you  can  show  a  lawful  vote,  it  is  the  vole  of  the  house, 
and  the  question  is  determined  by  a  majority  of  those  who  actu- 
ally vote.  In  order  for  the  vote  to  be  lawful,  none  of  the  mem- 
bers must  be  excluded  from  the  house  or  denied  the  privilege 
of  voting;  though,  when  a  question  is  put,  the  members  are  not 
at  liberty  to  sit  still  or  make  a  noise  in  order  to  defeat  a  vote, 
under  pretence  that  they  did  not  vote,  or  did  not  hear.  Such 
a  course  would  lead  to  endless  confusion  in  a  deliberative  bodv, 
and  would  prevent  the  transaction  o{  business  altogether,  when- 
ever a  faction  should  choose. 

The  New  School  party,  both  before  and  after  their  adjourning  to 
the  First  Presbyterian  Church,  excluded  nobody.  Every  commis- 
sioner to  the  General  Assembly  of  1838  was  at  liberty  to  partici- 
pate in  their  proceedings.  Their  hearts  and  arms  were  open  to 
receive  them  all,  irrespective  of  party.  The  names  of  all  the  mem- 
bers were  placed  on  their  roll.  A  lawful  question  was  lawfullv  put 
by  a  recognized  member  of  the  house.  In  a  case  of  this  kind,  the 
question  must  of  necessity  be  put  by  a  member,  and  any  member 
has  a  right  to  put  the  question  in  such  a  case.     It  was  distinctlv 


308 

and  lawfully  put,  and  determined  in  the  affirmative,  as  were  the 
succeeding  questions,  as  you  will  recollect  from  the  testimony,  by 
members  of  the  house,  whose  names  had  been  enrolled  and  reported 
by  the  clerks,  and  who  had  been  declared  by  Dr.  Elliott  to  be  men\- 
bers  of  the  house.  The  same  objections  or  excuses  could  not  be 
made  as  in  the  case  of  the  motion  of  Dr.  Patton.  According  to 
Dr.  Elliott's  ow^n  showing,  there  was  now  a  house.  Mr.  Cleave- 
land  stated  his  reasons  for  his  motion,  the  necessity  of  changing  the 
moderator  at  that  time,  and  then  moved  that  Dr.  Beman  take  the 
chair.  Now  that  was  coming  to  the  pinch  of  the  matter.  A  mo- 
tion was  now  made,  and  the  question  was  about  to  be  put  to  the 
General  Assembly  of  1838,  which  would  elicit  a  vote  of  that  body, 
whether  they  would  sanction  the  excluding  acts  of  1837.  The 
choice  of  another  moderator  is  not  the  only  thing  which  it  involved. 
It  involved  also  the  acts  of  excision  of  1837,  for  on  them  were  based 
the  unlawful  acts  of  Dr.  Elliott  and  the  clerks.  The  General  As- 
sembly of  1838  being  a  new  body,  composed  of  delegates  elected 
by  the  several  presbyteries,  and  reflecting  their  will,  had  power  to 
repeal  the  excinding  resolutions  of  1837,  even  if  those  resolutions 
had  been  valid.  Any  act  of  a  former  General  Assembly  might 
have  been  rescinded  by  the  General  Assembly  of  1838,  if  found  to 
be  injurious  in  its  operation  and  tendency.  But  the  motion  was  to 
remove  the  moderator  by  appointing  another  presiding  officer,  and 
on  the  question  being  put  to  the  house,  it  was  determined  in  the 
affirmative  by  a  majority  of  votes.  The  members  had  all  an  op- 
portunity to  vote  on  the  question,  but  there  was  a  corner  in  the 
house  where  they  were  unwilling  that  the  question  should  be  put, 
and  they  not  only  refused  to  vote,  but  tried  to  interrupt  the  proceed- 
ings by  making  a  noise  of  various  kinds.  I  am  sorry  to  say  it,  but 
I  must.  They  acted  in  a  riotous  and  disorderly  manner.  That  the 
question  on  the  motion  of  Mr.  Cleaveland  was  put  to  the  house,  is 
admitted,  and  the  only  point  of  fact  in  relation  to  it  which  is  dis- 
puted, is,  whether  there  was  a  reversal  of  the  question.  On  this 
point,  however,  there  can  be  no  difficulty.  The  fact  is  clearly 
proved  by  so  large  a  number  of  witnesses,  that  there  is  no  room  for 
even  the  shadow  of  a  doubt.  True,  they  bring  witnesses  to  testify 
that  they  did  not  hear  the  reversal.  And  what  of  that?  Why  did 
they  not  hear  it?  They  contrived  to  make  so  much  noise  as  to 
prevent  themselves  from  hearing.  There  was,  in  that  corner  of  the 
house  occupied  by  the  Old  School  party,  a  universal  uproar  and 
confusion — shuffling,  stamping,  scraping  with  the  feet,  coughing 
and  hissing,  the  moderator  rapping  with  his  hammer,  cries  of  order, 
and  what  other  kinds  of  noise  1  do  not  know,  but  they  prevented 
themselves  from  hearing  the  reversal  of  the  question,  by  these  un- 
seemly noises.  Ah,  but  the  coughing  was  '*  not  a  legislative  cough !" 
Those  reverend  divines  were  not  expei'ienced  in  the  art.  Mr.  Low- 
rie,  who  has  had  some  experience  in  such  matters,  tells  you  that  it 
was  not  a  parliamentary  cough.  That  is,  I  suppose,  it  was  not  so 
loud  and  boisterous  as  is  sometimes  heard  in  the  British  parliament, 
when  it  is  determined  to  cough  doicn  a  member.  The  reason  was, 
thev  w-ere  inexperienced  in  the  art  of  coughing.     They  had  prac- 


309 

tised  only  since  9  o'clock  that  morning,  and  had  not  got  their 
throats  opened  sufTiciently.  But  still  they  managed  to  cough  as 
loud  as  they  could,  and  if  they  did  not  come  fully  up  to  the  standard 
of  parliamentary  coughing,  still  their  coughing  was  loud  enough  to 
prevent  themselves  from  voting,  and  that  is  the  clinching  in  this 
case.  Whilst  they  were  coughing,  the  vote  was  going  on  under 
their  eyes.  They  might  have  heard  it,  but  they  were  determined 
not  to  hear.  That  they  prevented  themselves  from  hearing  by  the 
noise  which  they  made,  is  amply  confirmed  by  the  testimony,  as  is 
the  fact  of  the  question  being  put  to  the  house  both  in  the  affirmative 
and  in  the  negative  form.  Numerous  witnesses  testify  that  they 
distinctly  heard  the  reversal  of  the  question.  They  distinctly  heard 
the  negative  vote.  They  heard  boti:  the  ayes  and  noes.  Wit- 
nesses from  every  corner  of  the  house,  on  the  floor  and  in  the  gal- 
lery, distinctly  heard  the  question  put  and  reversed,  and  tell  you 
that  there  was  a  negative  vote  as  well  as  an  affirmative  one.  In- 
deed, this  south-western  asthma  seems  to  have  been  rather  unfor- 
tunate in  its  time  of  attacking  the  Old  School  members,  for  their 
own  witnesses  show  that  the  essential  motions  were  heard  by  all 
who  were  willing  to  hear.  One  of  their  witnesses,  who  stated  that 
he  heard  the  motion  of  Mr.  Cleaveland  distinctly,  was  but  partly 
in  the  house,  beyond  the  south-western  members,  and  more  remote 
from  Mr.  Cleaveland  than  almost  any  one  of  them ;  so  that  it  ap- 
pears that  it  was  heard  at  the  remotest  distance.  We  should  not 
have  known  this  fact,  if  it  had  not  been  for  that  straggling  Episco- 
palian, [the  only  one  there,  it  appears,  and  as  an  Episcopalian, 
I  certainly  should  hope  so,]  Mr.  Norris,  who  thrust  his  head  in 
at  the  south-western  door  of  the  house.  I  don't  know  how  they 
came  to  get  that  witness — for  it  appears  that  he  only  ventured  to 
poke  his  head  inside  the  door,  whilst  his  body  remained  outside, 
thus  securing  to  himself  the  means  of  a  safe  escape.  I  don't  know 
what  business  he  had  there ;  but  whatever  took  him  there,  he  is 
their  witness,  and  it  is  from  him  that  we  learn  the  fact,  that  the  mo- 
tion was  distinctly  heard  even  beyond  the  part  of  the  house  occu- 
pied by  the  Old  School  party. 

We  learn  from  all  the  witnesses  that  Mr.  Cleaveland's  voice  is 
very  distinct  and  clear,  and  that  he  usually  speaks  very  loudly. 
The  moderator  himself  states  that  he  heard  the  motion.  The  nega- 
tive vote  also  was  heard  in  every  part  of  the  house.  There  was  a 
general  aye,  and  a  few  noes.  Some  of  the  witnesses  heard  no  noes, 
but  many  of  them  tell  you  that  they  heard  a  few  scattering  noes. 
These  are  facts  proved  all  round.  It  is  in  vain  to  dispute  them. 
Those  witnesses  who  did  not  hear  any  noes,  nor  hear  the  question 
reversed,  do  not  contradict  or  disprove  the  testimony  of  those  who 
did.  They  only  testify  that  they  did  not  hear  them.  For  it  is  a 
well  established  principle  of  law,  that  a  dozen  witnesses  declaring 
negatively  that  they  did  not  see  or  hear  a  certain  fact,  will  not  in- 
validate the  testimony  of  one  who  testifies  affirmatively  and  posi- 
tively that  he  did  see  or  hear  it. 

Now  what  is  it  which  is  to  save  Dr.  Elliott'?  Why  they  say  the 
right  question  was  not  put;  it  should  have  been  a  motion  addressed 


310 

to  Dr.  Elliott  himself  for  his  removal.  But  who  would  have  ad- 
dressed such  a  question  as  that  to  Dr.  Elliott,  after  the  manner  in 
which  he  had  treated  Mr.  Squier,  for  simply  claiming  his  own  seat? 
Beside,  this  motion  was  equivalent  to  that;  it  was  a  motion  to  re- 
move Dr.  Elliott  by  putting  another  in  his  place,  and  it  was  ad- 
dressed to  the  house,  the  proper  body  to  act  under  these  circum- 
stances. This  proceeding,  you  will  observe,  is  exactly  parallel  to 
that  in  1835.  Dr.  Ely,  as  a  member  of  the  Assembly  (for  as  stated 
clerk  he  was  not  an  officer  of  the  house,  but  his  duties  occurred 
during  the  interim)  put  the  question  to  the  house  to  place  Dr. 
M'Dowell  in  the  chair  instead  of  Dr.  Beman.  It  was  a  good  rule, 
it  seems,  in  1835,  for  putting  Dr.  Beman  out  of  the  chair,  but  a  very 
bad  one  for  putting  him  into  it  in  1838.  It  is  needless  to  waste 
words  on  this  subject,  for  plainly,  by  all  rule,  from  the  nature  of  the 
case,  and  according  to  former  precedent,  Mr.  Cleaveland  had  a 
perfect  right  to  put  the  question  which  he  did.  Dr.  Beman,  being 
thus  chosen,  took  the  chair ;  in  other  words,  he  assumed  the  office 
of  moderator.  But  why,  they  ask,  did  he  take  a  station  in  the  aisle? 
Why  did  he  not  occupy  the  little  chair  usually  occupied  by  the 
moderator.  I  reply.  Dr.  Elliott  still  sat  there,  though  he  was  divest- 
ed of  his  office.  It  is  entirely  unimportant  where  the  moderator 
took  his  position.  If  Dr.  Beman  had  waited  until  Dr.  Elliott  left 
the  chair.  Dr.  Elliott  might  have  been  there  yet;  and  it  is  impossible 
to  tell  what  might  have  been  the  consequence,  if  he  had  been  re- 
quired to  give  up  his  seat.  It  is  fabled  of  Aristophanes,  that  he  sat 
so  long  in  one  place  as  to  become  united  to  the  seat.  Whether  Dr. 
Elliott  would  have  done  so,  is  more  than  we  can  tell.  Dr.  Beman 
then,  could  not  have  occupied  any  other  portion  than  he  did.  These 
trivial  circumstances  are  of  no  moment  whatever.  But  why  did 
they  not  call  a  former  moderator  to  the  chair  1  That  question  is 
already  answered.  I  may  here  add,  that  it  was  entirely  unneces- 
sary to  do  so :  the  constitution  does  not  require  it.  The  rule  which 
suggests  such  a  course  was  not  binding,  and  if  it  had  been,  it  did  not 
apply  to  this  case,  that  rule  having  reference,  not  to  a  moderator 
to  be  called  to  the  chair  after  the  process  of  organization  had  com- 
menced, but  to  one  originally  to  take  the  chair  at  the  opening  of 
the  meeting. 

The  motion  to  choose  another  moderator  was  equivalent  to  a 
motion  putting  Dr.  Elliott  out  from  being  moderator.  When  that 
motion  was  made,  and  the  question  put  to  the  house  by  Mr.  Cleave- 
land, it  was  carried  by  a  large  majority  of  votes.  For,  according 
to  all  law  and  usage,  we  can  only  know  what  the  decision  was  by 
the  vote,  without  respect  to  the  reasons  of  individuals  for  voting  or 
not  voting,  and  those  who  remained  silent  and  refused  to  vote,  must 
be  considered  as  having  acquiesced  in  the  decision.  This  is  always 
so,  and  it  would  otherwise  be  impossible  to  transact  business.  If 
they  did  not  know  this,  it  was  unfortunate  for  them.  But  it  is  not 
to  be  believed  that  they  did  not  know  it.  That,  however,  does  not 
change  the  nature  of  the  case.  It  was  not  our  fault  that  they  did 
not  vote.  It  was  not  the  fault  of  the  law.  It  was  their  own  fault. 
Again  it  is  objected — the  question  was  not  put  to  the  house  by  Dr. 


311  ' 

Elliott.  To  this  we  reply  that  it  is  the  practice  of  the  country. 
When  a  motion  is  made  which  is  personal  to  the  speaker,  it  is  not 
put  to  the  house  by  the  speaker,  but  by  the  member  making  the 
motion,  though  a  motion  may  be  put  by  the  clerk  if  the  house 
order  it. 

They  have  said  that  Mr.  Cleaveland  did  not  reverse  the  question. 
But  we  have  shown,  we  have  proved  beyond  a  doubt,  that  he  did 
reverse  it ;  although  by  parliamentary  law  there  is  not  a  necessity 
for  reversing  the  question  in  such  a  case.  But  it  was  reversed.  It 
is  a  well  known  principle  of  law  and  of  common  sense,  that  positive 
testimony  must  altogether  outweigh  that  which  is  negative,  for  no 
man  can  positively  know  that  a  fact  did  not  transpire. 

We  have  the  testimony  of  no  less  than  sixteen  witnesses  of  dif- 
ferent parties  in  the  church,  who  are  positive  that  the  question  was 
reversed.  One  of  them  tells  you  that  he  was  disappointed  in  the 
small  number  of  noes,  when  the  question  was  reversed.  He  was 
surprised  that  the  Old  School  men  did  not  vote  down  the  proposi- 
tion. If  this  testimony  be  false,  it  is  in  the  very  worst  sense  false. 
True,  one  of  the  witnesses  on  the  other  side  stated,  that  he  would 
have  heard  the  motion,  if  it  had  been  reversed.  How  could  he 
know  that  he  would  have  heard  it?  He  could  not  possibly  know 
it.  Another  goes  on  to  describe  the  confusion  which  prevented 
him  from  hearing.  The  most  that  they  could  say  in  truth  was 
that  they  did  not  hear  it.  Not  that  it  was  not  reversed.  Of  their 
witnesses,  twenty-seven  in  number,  who  did  not  hear  it,  there  were 
three  classes.  One  class,  like  Dr.  Elliott,  and  others,  were  occu- 
pied about  other  things,  or  themselv^es  making  so  much  noise  that  it 
was  not  strange  that  they  should  not  hear.  Another  class  heard 
things,  some  one  thing  and  some  another,  which  did  not  transpire, 
as  the  "motion  to  move  down  the  aisle,"  and  things  which  were  im- 
possible under  the  circumstances.  Still  another  class  were  deter- 
mined not  to  hear,  as  you  have  gathered  from  their  testimony. 

It  would  not  be  worth  while  to  dwell  on  this  point,  if  the  other 
side  had  not  indicated  a  disposition  to  hang  their  whole  case  upon 
the  single  point  whether  Mr.  Cleaveland  said,  "  those  Avho  are  op- 
posed will  say  no."  But  I  am  sure,  gentlemen,  that  you  can  have  no 
doubt  on  this  point,  when  you  consider  the  comparative  weight  of 
positive  and  negative  tesj^imony,  and  the  circumstances,  according 
to  the  avowals  of  the  Old  School  themselves,  which  were  likely  to 
prevent  their  hearing,  and  especially,  when  in  connexion  with  this 
consideration,  you  reflect  that  the  reversal  of  a  question  is  a  matter 
of  such  usual  occurrence,  as  not  likely  to  make  an  impression  to 
be  particularly  remembered.  But  for  particular  circumstances, 
directing  the  attention  of  our  witnesses  to  the  fact,  we  should  proba- 
bly not  have  been  able,  at  all,  to  show  that  the  question  was  re- 
versed, and  so  it  would  not  be  strange  that  others  should  not  have 
remembered  it.  This  position  is  perfectly  philosophical,  and  an  apt 
illustration  of  it  is  at  hand.  The  clock  on  this  very  building  is 
heard  for  miles,  and  yet  probably  not  a  man  in  that  jury  box  would 
venture  to  say  that  he  has  this  morning  heard  it  strike  the  hours  of 
11  and  12.     But  it  has  so  struck,  at  least  the  time  is  passed  when 


312 

it  should  have  done  so,  and  it  is  not  wont  to  fail.  Perhaps  not  three 
individuals,  in  this  crowd  of  hundreds,  could  say  that  he  heard  it. 
But  let  it,  though  in  lower  tones,  strike  in  its  less  common  form  and 
sound  the  alarm  of  fire,  every  individual  would  at  once  catch  the 
sound,  and  it  would  not  be  forgotten. 

I  am  not  at  all  surprised  that  they  did  not  hear  Mr.  Cleaveland, 
though  his  voice  is  unusually  clear  and  strong,  and  he  was  dis- 
tinctly heard  over  every  part  of  the  house.  The  only  wonder  is 
that  they  heard  any  part  of  what  he  said,  they  were  in  such  a  state 
of  disorder  at  the  time.  How  could  they  hear  in  the  midst  of  the 
noise  and  confusion  which  they  made  among  themselves '?  And  if 
they  did  hear  him,  could  it  be  expected  that  men  under  the  influ- 
ence of  excitement  so  great  as  that  which  then  obtained  among 
them,  could  remember  so  as  to  give  a  correct  account  of  what 
transpired. 

The  excitement  must  have  run  very  high,  or  Dr.  Miller,  who 
was  not  a  member  of  the  Assembly,  distinguished  as  that  gentle- 
man is  for  a  scrupulous  regard  to  decorum,  would  not  have  Ibund 
himself  waving  his  hand  and  crying  order.  It  appears  by  his  own 
account,  that  he  wsls  for  some  time  unconscious  of  what  he  did, 
and  was  surprised  to  find  himself  in  such  a  predicament.* 

For  them  now  to  set  up  the  defence  that  they  did  not  hear  the 
(juestion  put,  or  that  it  was  not  reversed,  appears,  in  view  of  the 
testimony  which  has  been  submitted,  very  much  like  a  forlorn 
hope.  Some  of  the  gentlemen  called  as  witnesses  by  the  respondents 
tell  you  that  they  would  not  have  voted  if  they  had  heard  the  question. 
Enough  was  elicited  from  their  own  witnesses  to  show  that  they 
might  all  have  heard  and  voted  if  they  would.  And  are  these  gen- 
tlemen to  get  their  case  by  their  own  refusal  to  vote,  and  the  dis- 
order which  they  themselves  produced?  Obviously,  if  they  get  it 
at  all,  it  must  be  by  these  means.  I  have  shown  you,  gentlemen, 
that  the  whole  conduct  of  the  Old  School  party  was  arbitrary,  dis- 
orderly and  illegal  from  beginning  to  end.  The  moderator's  refusing 
to  receive  a  motion  from  a  recognized  member  of  the  General  As- 
sembly, and  above  all  refusing  to  put  an  appeal  from  his  decision, 
the  refusal  of  the  clerks  to  receive  and  enrol  the  commissions 
from  a  certain  district  which  the  party  had  determined  to  put  out 
of  the  church,  were  not  merely  disorderly,  but  in  direct  violation  of 
the  law  of  the  land  and  the  constitution  of  the  church.  There  was 
an  unlawful  combination,  a  conspiracy  of  these  officers  against  the 
rights  and  privileges  of  their  brethren. 

Now  as  to  the  vote,  if  there  is  any  such  thing  as  faith  in  hu- 
man testimony,  it  is  fully  proved  that  the  question  was  put  to  the 
house,  both  affirmatively  and  negatively,  and  that  the  aflirmative 

*  While  the  form  containing  the  testimony  of  Dr.  Miller  was  in  press,  the  ste- 
nographer sent  a  note  saying  that  he  had  discovered  a  slip  containhig  notes  of 
a  portion  of  the  Doctor's  testimony,  which  he  had  omitted  to  send  with  the  other, 
in  consequence  of  its  being  mislaid.  It  was  then  too  late  to  insert  it  in  its  proper 
place,  and  it  is  here  subjoined. 

Dr.  Miller  said — It  was  indeed  a  scene  of  great  excitement,  and  I  was  surprised 
to  find  myself,  though  not  a  commissioner,  unconsciously  waving  my  hand,  and  ex- 
pT-eosing  a  wish  for  the  restoration  of  order. 


313 

vote  was  much  larger  than  the  negative.  In  other  words,  that  it 
was  carried  by  a  decided  and  lawful  majority.  True,  many  did 
not  vote,  but  that  circumstance  did  not  and  cannot  change  the  re- 
sult. They  practically  consented  to  the  decision  by  their  silence, 
at  the  time,  and  must  abide  the  consequences. 

The  question  was  put  in  a  voice  sufficiently  audible  to  be  heard 
all  over  the  house,  and  was  heard  in  every  corner  of  the  house.  No 
man  called  for  a  division  of  the  house,  as  every  member  had  a 
a  right  to  do.  The  question  then  was  legally  carried.  If  they  did 
not  hear  it  reversed,  we  have  shown  the  reason ;  but  the  fact  is  it 
was  reversed.  The  negative  voices  were  distinctly  heard,  though 
a  few  scattering  noes  only  were  raised.  They  knew  that  they 
were  the  defeated  party,  and  sat  in  mute  amazement,  finding 
that  their  plans,  though  woven  with  the  ingenuity  of  the  spider's 
web,  had  proved  abortive;  that  they  were  completely  caught 
in  their  own  trap,  and  were  grovelling  at  the  bottom  of  the  pit, 
which  they,  with  so  much  pains,  had  digged  for  others.  They 
need  not  lay  the  blame  on  the  ladies  in  the  gallery,  for  they  made 
the  noise  themselves.  Their  acts  show  that  they  saw  themselves 
defeated,  and  a  perfect  phrensy  appears  to  have  been  produced 
among  them  by  seeing  that  the  straight  forward  course  of  truth 
was  triumphant  over  their  tortuous  inventions.  Under  these  cir- 
cumstances the  spectre  of  Mr.  Dufiield  rose  before  their  over-excited 
imaginations,  and  "the  hair  of  their  heads  stood  up."  They  could 
not  discern  or  describe  what  manner  of  form  it  was,  but  it  "shouted 
aye,  so  as  to  be  heard  across  Washington  Square!"  The  mere 
operation  of  taking  a  vote  on  the  appointment  of  a  new  moderator, 
threw  them  into  amazement,  and  their  excited  imaginations  con- 
jured up  phantoms  in  every  bush,  and  spectres  in  every  pew.  They 
saw,  or  thought  they  saw,  this  spectre,  which  was  every  way  dif- 
ferent in  manners  and  appearance  from  Mr.  Dufiield,  flourishing 
his  cane  and  striking  with  it  on  the  seat.  Who  or  what  this  spec- 
tre was,  I  leave  for  you  to  judge.  But  it  could  not  have  been  Mr. 
Dufiield.  By  some  similar  disorder  of  the  mind,  doubtless,  it  must 
be  accounted  for,  that  a  worthy  minister  should  use  toward  his 
brethren  such  language,  as  one  of  their  own  witnesses,  Dr.  Phillips, 
testifies  that  the  Rev.  Mr.  Boardman  used  on  that  occasion,  "  Whom 
the  gods  have  determined  to  destroy,  they  first  make  mad."  Mr. 
Boardman's  imagination  must  have  been  touched  by  some  magic 
wand,  or  he  would  hardly  have  adopted  and  applied  in  that  strange 
manner  this  pagan  maxim. 

On  the  other  hand,  Mr.  Cleaveland  and  his  friends,  having  no 
devious  course  to  sustain,  no  unlawful  and  unconstitutional  plans  to 
efiect,  came  straight  forward  to  the  work.  They  distinctly  an- 
nounce that  a  constitutional  organization  of  the  General  Assembly 
catmot  be  effected  without  admitting  to  their  seals  all  duly  appoint- 
ed commissioners;  that  they  were  determined  under  legal  advice 
to  efiect  that  organization ;  that  all  the  commissioners  had  a  right 
to  vote,  both  the  Old  School  party  and  the  New  School  party;  that 
their  rights  were  equal.  The  commissioners  from  the  twenty-eight 
presbyteries  within  the  bounds  of  the  four  excinded  synods,  were 
27 


314 

entitled  to  equal  rights  and  privileges  with  those  from  other  pres- 
byteries, whether  they  were  located  in  Virginia,  Pennsylvania,  or 
any  other  state.  The  excinding  resolutions  of  1837  were  uncon- 
stitutional, null  and  void,  to  all  intents  and  purposes.  They  could 
have  no  effect  whatever. 

Thus,  stating  explicitly  what  they  mean  to  do,  they  are  not  dis- 
mayed by  the  cries  of  order,  raised  merely  to  drown  their  voices 
and  prevent  their  being  heard.  They  state  their  motions  distinctly 
and  audibly  to  the  house,  giving  all  an  opportunity  to  understand 
them,  and  to  act  on  them  if  they  please.  In  this  calm  procedure, 
a  new  moderator  and  new  clerks  are  elected,  and  then,  being 
warned  that  none  but  those  who  adhere  to  the  rebellious  party  may 
occupy  that  house,  the  body  adjourned  from  the  scene  of  confusion 
in  Ranstead  Court,  to  the  place  where  the  Assembly  was  accus- 
tomed to  meet  in  earlier  days,  when  all  parties  held  sacred  the  prin- 
ciples of  their  constitution;  taking  care,  however,  in  this  adjournment, 
to  inform  all  present,  that  there  was  nothing  exclusive  in  their 
movements.  This  they  did  in  the  terms  of  the  adjournment  itself, 
and  by  proclamation  at  the  church  doors,  as  has  been  already  de- 
tailed to  you.  Thus  we  did  what  we  could  to  maintain  inviolate 
the  unity  of  the  body  vi^hich  our  brethren  had  attempted  to  sever. 
We  employed  the  only  means  in  our  power,  by  which  could  be 
maintained,  in  a  peaceable  manner,  the  rights  of  all  portions  of  the 
church,  and  the  inviolability  of  the  constitution.  We  had  made 
them  liberal  offers  for  the  amicable  adjustment  of  all  difficulties,  but 
they  would  not  hear.  They  were  determined  to  exclude  us  from 
the  church  of  our  fathers.  They  would  not  be  satisfied  with  any 
thing  short  of  a  confession  on  our  part,  that  we  were  not  Presbyte- 
rians, that  we  were  heretics  and  apostates.  If  we  would  not  ac- 
knowledge this,  (and  they  knew  that  we  never  could,  because  the 
charge  was  utterly  groundless,)  they  were  determined  to  exclude 
us  from  the  church.  They  were  determined  to  put  the  knife  to  our 
throats:  nothing  short  of  our  blood  would  satisfy  them.  We  de- 
fended ourselves  and  the  rights  of  our  brethren,  only  with  the  force 
of  truth  and  the  simplicity  of  righteous  and  constitutional  action. 
Of  these  we  are  not  ashamed.  We  excluded  no  one  ;  excluded  no 
one.  We  have  ever  acknowledged  and  do  still  acknowledge  our 
erring  brethren,  as  equally  entitled  with  us  to  the  rights  and 
privileges  of  the  church,. and  to  an  equal  place  in  its  councils.  And 
the  effect  of  your  verdict,  gentlemen,  if  given  to  us,  as  I  doubt  not 
it  must  be,  will  not  be  to  exclude  the  party  of  the  Old  School  from 
the  church,  but  only  to  say,  according  to  the  facts  in  the  case,  that 
we  are  still  one  church,  who  may  either  remain  together  in  unity, 
or  peaceably  separate  into  two  bodies  on  such  equitable  terms  as 
all  may  agree  to  adopt. 

But  they  still  ask,  why  was  not  Dr.  Beman  or  Dr.  Fisher  put  into 
the  chair  usually  occupied  by  the  moderator  ?  You  have  seen, 
gentlemen,  that  there  was  no  necessity  for  this,  no  rule  of  order  or 
discipline  requiring  it.  Beside,  with  the  temper  which  prevailed  at 
the  time  among  the  Old  School  members,  it  is  easy  to  see  that  such 
a  course  of  proceeding  would  have  been  unwise  and  highly  inex- 


315 

pedient.  Would  it  not  have  led  to  a  riot?  Would  not  Dr.  Hill's 
apprehensions  of  violence  have  been  verified  ?  Undoubtedly  such 
would  have  been  the  consequence  of  an  attempt  to  put  another 
moderator  in  the  wooden  chair  which  Dr.  Elliott  then  occupied. 
In  relation  to  that  matter,  I  will  only  say  in  addition,  that  I  know 
not  why  such  a  trivial  objection  as  this,  and  Dr.  Beman's  not 
having  the  little  wooden  hammer  in  his  hand  should  be  raised,  ex- 
cept they  suppose  that  there  was  something  mystical  in  the  chair, 
like  the  nether  garment  of  Mohammed,  and  that  those  mystical 
virtues  were  communicated  to  him  that  sat  thereon.  They  do  not 
ascribe  any  such  mystical  virtues  to  the  chair  which  was  occupied 
by  Dr.  M'Dowell,  nor  to  the  stool  on  which  Mr.  Krebs  sat,  though 
I  know  not  but  they  may,  after  having  adopted  the  pagan  maxim, 
*'  whom  the  gods  are  determined  to  destroy  they  first  make  mad." 

There  were  no  such  mystical  virtues  in  chair,  stool  or  mallet, 
and  we  are  legally  and  constitutionally  the  "  General  Assembly  of 
the  Presbyterian  church  in  the  United  States  of  America,"  whether 
we  have  such  tools  or  not.  Being  then  constitutionally  organized, 
we  made  a  legal  adjournment,  and  in  the  regular  progress  of  busi- 
ness, elected  the  individuals,  who  are  now  the  relators  in  this  case, 
as  trustees  of  the  General  Assembly,  according  to  the  provisions  of 
the  act  of  incorporation  received  from  the  legislature  of  this  common- 
wealth. This  election  was  regularly  conducted  according  to  the 
standing  regulations  on  that  subject.  All  these  things  are  fully  shown 
to  you,  gentlemen,  in  the  Testimony.  It  is  also  in  evidence,  that  a 
majority  of  the  Board  of  Trustees  refused  to  admit  these  relators  to 
their  seats  in  that  board,  and  that  the  persons  in  whose  place  the 
relators  were  elected,  continued  to  exercise  the  office  of  trustees. 
On  this  account  this  suit  is  brought.  Now  if  the  Assembly  which 
elected  the  relators  is  the  legal  General  Assembly,  it  is  beyond  dis- 
pute that  they  were  legally  elected ;  the  case  is  then  ours,  and  so 
will  be  your  verdict. 

I  have  now  examined  the  facts  of  the  case  in  detail.  Respecting 
the  law  in  relation  to  it,  it  is  the  province  of  his  honour  the  judge 
to  instruct  you.  I  regard  the  law  in  its  application  to  this  case 
as  so  plain,  that  I  need  say  little  respecting  it.  If,  as  I  apprehend 
that  he  will,  his  honour  shall  instruct  you  that  those  who  did  not 
vote  are  to  be  accounted  as  acquiescing  in  the  decision  of  the  ma- 
jority of  those  who  did  vote,  then,  if  you  believe  that  Dr.  Beman 
was  elected  moderator  by  a  majority  of  those  who  actually  voted 
on  the  question,  and  that  point  is  fully  proved,  your  verdict  must  be 
for  the  relators.  No  fact  could  be  more  fully  established  by  human 
testimony,  than  the  fact  that  a  majority  of  the  votes  given  on  the 
occasion  referred  to  were  for  Dr.  Beman  as  moderator.  And  that 
fact  being  established,  there  is  an  end  of  the  controversy. 

Those  for  whom  I  act  desire  to  have  their  rights  and  to  preserve 
the  unity  of  the  church,  and  nothing  more.  They  do  not  wish  to 
exclude  others  from  the  enjoyment  of  their  rights  and  privileges, 
nor  do  they  wish  to  be  excluded  themselves.  And  if  your  verdict 
shall  be  in  their  favour  (and  it  cannot  be  otherwise)  it  will  go  far 


316 

towards  restoring  peace  and  harmony  to  the  Presbyterian  Church. 
Such  a  verdict  will  deprive  no  person  of  any  right  or  privilege,  but 
will  secure  the  rights  of  all  concerned.  While  it  will  declare  the 
excinding  resolutions  of  1837  to  be  null  and  void,  and  put  the  seal 
of  reprobation  on  such  usurpations  as  those  of  the  clerks  and  the 
moderator  at  the  meeting  of  the  General  Assembly  of  1838,  it 
will  exclude  none  of  the  members  of  the  church,  nor  will  it  deprive 
any  presbyterial  delegate  of  either  party  from  taking  his  seat  in  a 
future  General  Assembly.  Such  a  verdict  I  confidently  anticipate, 
and  such  a  verdict  will  have  a  salutary  tendency  to  heal  the  breach 
between  these  two  parties. 

I  leave  the  case  with  you,  gentlemen,  with  the  fullest  confidence 
that  you  will  render  a  righteous  verdict. 

Allow  me  to  say,  that  if,  in  the  course  of  my  remarks,  I  have  used 
any  expression  which  might  seem  to  be  personally  disrespectful  or 
offensive,  I  can  only  say  that  I  did  not  intend  it.  I  sincerely  hope 
that  the  end  of  this  controversy  may  be  peace. 

Mr.  Meredith  having  closed,  at  1  o'clock,  on  Monday,  March  18th, 
at  a  quarter  past  one  William  C.  Preston,  Esq.,  of  South  Carolina 
addressed  the  jury  as  follows.  His  argument  occupied  the  re- 
mainder of  Monday  and  the  two  succeeding  days: 

With  the  permission  of  the  Court, — Gentlemen  of  the  Jury :  It  is  a 
peculiar  misfortune  to  myself  to  come  to  the  argument  of  this  im- 
portant case,  labouring  under  severe  indisposition.  This  indisposi- 
tion must  be  evident  to  you  all.  A  few  more  hours  of  rest  to  recover 
from  the  debility  under  which  I  have  been  labouring  for  several  days 
would  have  been  very  desirable.  But  as  the  patience  of  both  the  judge 
and  the  jury  must  be  by  this  time  in  a  great  measure  exhausted,  I  am 
admonished  of  the  necessity  of  proceeding  immediately  to  the  argu- 
ment of  the  case,  though,  as  must  be  obvious  to  you  all,  with  very  in- 
adequate physical  strength.  I  consider  my  indisposition  at  the  present 
juncture  as  being  a  peculiar  misfortune,  personally,  to  myself,  but  not 
at  all  to  the  cause  of  those  whom  I  represent.  For  I  am  thankful  that 
their  cause  does  not  require  any  great  exertion  on  my  part,  in  its 
defence.  For,  permit  me  to  say,  gentlemen,  and  I  can  assure  you 
that  I  say  it  with  all  candour,  that  this  cause  requires  very  little 
exertion  for  its  triumphant  vindication,  incredible  as  the  assertion 
may  appear  to  some  of  those  who  have  listened  to  the  able  and 
eloquent  argument  of  the  counsel  on  the  other  side,  during  a  period 
of  nearly  two  days.  Permit  me,  gentlemen,  further  to  observe  (and 
I  make  the  observation  candidly)  that  I  do  not  feel  the  slightest 
apprehension,  or  doubt  that  in  the  result  of  this  case  your  decision 
will  establish  these  defendants  in  the  full  and  free  exercise  of  their 
just  rights  and  privileges,  and  thus  go  far  towards  the  restoration 
of  peace  and  harmony  to  the  Presbyterian  Church. 

Entertaining  no  doubt  that  this  will  be  the  effect  of  the  verdict 
which  you  will  render  after  you  shall  have  heard  what  the  counsel 
for  the  defence  shall  lay  before  you  in  relation  to  this  case,  I  will 
proceed  immediately  to  its  examination.     It  is  to  me  a  fortunate 


317 

circumstance,  gentlemen,  that  the  case  is  a  plain  one,  as  you  will 
readily  perceive  when  all  the  circumstances  in  relation  to  it  shall 
have  been  fairly  laid  before  you. 

I  cannot  otherwise  than  admire  the  zeal  and  ability  which  have 
been  displayed  by  the  counsel  for  the  relators,  which  you,  as  well 
as  myself,  have  witnessed  during  the  progress  of  this  cause — a  zeal, 
which,  circumstanced  as  I  now  am,  I  cannot  attempt  to  emulate. 
The  gentlemen  have  certainly  manifested  great  ability  and  zeal 
in  the  course  which  they  have  adopted,  not  only  in  the  opening 
speech  of  the  learned  counsel  who  first  addressed  you,  but  in  the 
examination  of  the  witnesses,  and  in  the  argument  of  the  eloquent 
gentleman  who  immediately  preceded  me.  But  you  will  observe, 
gentlemen,  that  your  attention  for  much  the  greater  part  of  the 
time,  has  been  occupied  with  subjects  relating  to  the  proceedings 
of  the  General  Assembly  of  1837.  In  the  opening  speech  of  Mr. 
Randall,  that  subject  occupied  full  tw^o-thirds  of  the  time.  A  large 
portion  of  the  testimony,  and  much  the  greater  portion  of  the  argu- 
ment which  you  have  heard  from  the  learned  and  able  gentleman 
who  has  just  closed,  had  relation  to  these  same  proceedings.  You 
will  recollect,  gentlemen,  that  nearly  the  whole  of  his  exordium 
was  taken  up  with  the  consideration  of  these  proceedings  of  1837. 
And  I  must  do  him  the  justice  to  say,  that  it  was  much  the  longest 
exordium,  in  proportion  to  the  length  of  his  argument,  which  I  ever 
heard.  I,  however,  will  not  follow  him  in  the  ingenious  course 
which  he  has  adopted.  I  shall  proceed  immediately  to  the  dis- 
charge of  my  duty  to  my  clients,  adopting  the  plan  which,  in  my 
opinion,  is  best  adapted  to  the  clear  elucidation  of  the  case.  I  think 
it  better  to  build  the  house  first,  and  add  the  portico  afterwards, 
provided  it  shall  then  be  found  to  be  a  necessary  appendage  to  the 
building.  For  an  exordium  is  not  more  necessary  to  the  entrance 
of  an  argument,  than  a  portico  to  the  entrance  of  a  house. 

Leaving  therefore  the  exordium  out  of  the  question,  it  is  possible 
that  some  portion  of  his  two  hours'  argument  of  to-day,  may 
demand  from  me  a  few  words  in  reply,  as  he  then  referred  for  the 
first  time  to  the  merits  of  the  case.  As  he  devoted  five  hours  to 
what  he  himself  admitted  were  only  preliminaries,  it  appears  that, 
in  his  estimation,  the  preliminaries  are  to  the  merits  of  the  case  as 
five  to  two.  I  should  consider  myself  entirely  exonerated  from 
uttering  one  word  in  reply  to  what  has  been  said  concerning  the 
proceedings  of  the  General  Assembly  of  1837,  feeling,  as  I  do,  per- 
fectly satisfied  that  those  proceedings  have  no  relevancy  to  this 
case:  but  as  they  have  thrown  down  the  gauntlet,  I  will,  after 
having  disposed  of  the  merits  of  the  case,  vindicate  my  clients 
from  the  imputations  cast  upon  them,  relative  to  their  conduct  in 
the  Assembly  of  that  year.  Persuaded  that  you  will  have  to  adju- 
dicate this  case  on  the  evidence  before  you,  relative  to  the  pro- 
ceedings of  the  General  Assembly  of  1838,  without  any  reference 
to  what  took  place  in  that  of  1837,  I  will  reverse  the  order  which 
my  friend  has  pursued,  in  laying  this  case  before  the  court  and 
jury.  I  will  commence  with  the  argument,  and  not  with  the  exor- 
dium.    A    skilful   general    will  put    his  artillery  before  the   light 

27* 


318 

troops,  and  not  behind  them.  But  the  efforts  of  the  gentleman 
which  have  been  displayed  with  such  admirable  ingenuity, 
remind  me  of  the  manoeuvre  of  some  general  of  which  I  have  read, 
who  shielded  himself  from  the  attack  of  his  opponents  by  operat- 
ing on  the  dust,  which  being  blown  in  the  faces  of  the  enemy,  pre- 
vented them  from  seeing  him.  I  will  not,  however,  waste  my  strength 
in  operating  on  the  cloud  of  dust  which  has  been  raised  with  so  much 
ingenuity,  and  thrown  directly  in  your  faces  with  so  much  dexterity 
by  the  opposing  counsel.  I  will  leave  it  until  the  wind  shall  come 
from  another  quarter,  when,  I  entertain  no  doubt,  it  will  be  blown 
entirely  away. 

To  come  at  once  to  the  case;  the  counsel,  as  you  must  have 
observed,  gentlemen,  for  the  relators,  have  failed  to  lay  down  any 
distinct  proposition,  on  which  they  hope  to  succeed,  in  establishing 
their  claim. 

My  responsibility  as  a  member  of  the  bar,  requires  that  I  should 
distinctly  stale  the  point  at  issue  in  this  case,  the  only  point  on 
which  the  opposite  counsel  can  possibly  rely;  or  his  ingenuity 
would  certainly  have  produced  some  other  before  you.  The  point 
on  which  your  verdict  is  to  be  rendered  is,  that  by  law  and  parlia- 
mentary usage,  the  rules  that  had  been  previously  adopted  by  the 
General  Assembly,  in  accordance  with  its  "  constitution  and  form 
of  government,"  being  obligatory  on  the  General  Assembly  of  1838, 
and  binding  on  all  the  members  of  that  Assembly,  when  voting  on 
the  subjects  presented  to  their  consideration,  we,  the  Old  School 
members,  are  to  be  considered  as  voting  with  them,  the  New 
School  party.  That  is,  we  are  to  be  considered  as  having  so 
voted  with  them  by  intendment  of  the  law!  On  this  point,  the 
whole  case  turns.  They  contend  that  we  acquiesced  in  their  pro- 
ceedings by  our  silence,  by  our  refusal  to  vote  against  them. 

Gentlemen,  it  is  the  solemn  conviction  of  my  own  mind,  that  this 
is  the  most  important  point  in  the  whole  case  before  you,  and  there- 
fore I  state  it  to  you  methodically,  though  I  consider  it  more  as 
a  question  of  law,  than  as  a  question  of  fact.  I  state  it  distinctly, 
as  the  hinge  on  which  the  whole  controversy  turns.  The  main 
point  for  your  decision  then  is,  whether,  in  the  General  Assembly 
of  1838,  in  putting  the  cjuestion  as  to  the  appointment  of  a  new 
moderator,  the  silence  of  a  portion  of  that  Assembly  is  to  be  con- 
strued into  an  acquiescence,  on  their  part,  with  those  who  voted  in 
the  affirmative,  on  the  question  then  raised  by  Mr.  Cieaveland. 
Did  we,  by  our  silence  and  refusal  to  vote  at  all  on  that  question, 
which  we  considered  to  be  entirely  out  of  order,  acquiesce  in  their 
disorderly  proceedings?  I  will  show  you  plainly  that  we  did  not 
so  acquiesce,  and  then  they  surely  will  not  claim  a  verdict  at  your 
hands. 

But,  before  a  minute  examination  of  the  evidence  in  relation  to 
this  point,  let  us  look  at  some  circumstances  which  must  neces- 
sarily claim  your  attention,  respecting  the  attitude  of  the  parties  to 
the  transactions  which  gave  rise  to  this  suit.  One  of  these  circum- 
stances, to  which  I  will  now  call  your  attention,  is  this.  They  have 
not  asserted  that  we  are  not  the  General  Assembly  of  the  Presby- 


319 

terian  church ;  they  have  not  come  here  to  impugn  much  less  to 
vituperate  us.     To  their  credit  be  it  said  they  have  done  neither. 
They  have  not  said  that  we  are  not  the  General  Assembly;  and  is 
not  that  an  admission  that  we  are  that  General  Assembly?    We  are 
not  standing  here  as    a    nonentity.     We    are    not    standing  here 
for   the  General  Assembly  of    1837,  which  was    dissolved  when 
it   closed    its    session,    and    became    a    nonentity.      Nor    are  we 
standing  here    for   any    General    Assembly   of   1838,  which  was 
also  resolved  into  its  original  elements.     I  stand  here  as  the  attor- 
ney of  Princeton  Seminary,  and  of  every  body  else  opposed  to  these 
relators.     We  act  on  the  defensive.     We  come  into  this  court  as 
the  trustees  of  the  General  Assembly  of  the  Presbyterian  churcli, 
having  been  elected    in    accordance  with  the    provisions   of   the 
charter  granted  to  that  Assembly  by  the  Legislature  of  Pennsyl- 
vania in  the  year  1799.     The  relators  in  this  case  are  not  properly 
in  court.      They  have    no  rights  to  establish  here.      They  have 
come  here  merely  by  an  intendment  of  law,  by  a  mere  antiphrasis. 
They  thus  come  into  this  court,  claiming  by  a  mere  antiphrasis  or 
intendment  of  law,  to  exercise  control  over  the  funds  and  property 
of  the  Presbyterian  Church,  which  church  is  opposed  to  them.     I 
must  say,  with  no  asperity  of  feeling  towards  these  relators,  that 
these  principal  charities,  devised  to  the  General  Assembly  of  the 
Presbyterian  church,  are  not  to  be  seized  on  merely  by  an  intend- 
ment of  law,  by  which  the  defendants  are  to  be  considered  as  par- 
ticipating in  what  they  did  not  intend  to  participate  in.     Justice  will 
not  sanction  it.     And  yet  the  counsel  for  the  relators  put  himself  on 
it.     He  put  himself  on  this  ground,  that  by  intendment  of  law,  the 
defendants  are  to  be  considered  as  having  sanctioned   the  whole 
proceedings  of  the  New  School  party  in  Ranstead  court,  though  it 
is  a  well  known  and  admitted  fact,  that  they  opposed  them    by 
every  legitimate  means  in  their  power.     It  is  an  atrocious  and  un- 
reasonable assum])tion,  that  a  mere  technicality  of  law  shall  super- 
sede the  whole  Presbyterian  Church,  by  depriving  the  true  trustees 
of  the  control  over  those  noble  beneficences,  which  have  been  de- 
vised to  that  church  "for  the  advancement  of  religion,  and  the 
glory  of  God."     And  in  such  a  case  as  this,  I  here  give  the  gentle- 
men notice,  that  we  shall  avail  ourselves  of  every  means  which  the 
law  allows  us,  to  prevent  such  a  supersedure.     I  ask  you,  gentle- 
men, for  you  have  doubtless  some  acquaintance  with  legal  pro- 
ceedings,  whether  you  have  ever  seen    such  a    spectacle  in  the 
courts  of  justice  of  Pennsylvania,  as  that  now  exhibited?     I  doubt 
very  much,  whether  you  or  the  learned  judge  who  presides  with  so 
much  dignity  on  that  bench,  ever  heard  of  a  case  brought  into  court 
in  this  manner. 

The  other  side  claim,  not  upon  any  principle  of  justice  or  right, 
but  upon  a  mere  technical  construction  of  an  intendment  of  law, 
in  opposition  to  the  known  and  admitted  facts  in  the  case.  And  I 
will  say  to  the  court  and  jury,  that  if  the  case  of  the  relators  be 
established  by  a  mere  technicality  of  law,  it  will  be  the  first  time 
that  I  have  ever  known  such  a  triumph  to  be  achieved.  I  know 
that  there  is  a  vulgar  notion  extant,  that  the  law  is  mere  trick,  that 
it  consists  entirely  of  technicalities  and  unmeaning  phrases,  and  that 


320 

it  has  but  little,  if  any  connexion  with  justice.  But  God  forbid  that 
I,  an  humble  officer  in  the  temple  of  justice,  should  give  the  least 
sanction  to  such  an  erroneous  opinion,  or  that  I  should  ever  witness 
the  triumph  of  a  mere  trick,  a  quibble,  over  the  fundamental  princi- 
ples of  law  and  justice. 

No,  it  cannot  be.  The  common  law,  that  glorious  fabric,  which 
has  been  founded  on  experience  and  built  up  with  so  much  labour 
and  care  by  the  skill  and  wisdom  of  centuries,  which  has  drawn 
forth  such  high-wrought  encomiums  from  the  most  eloquent  states- 
men and  orators,  shall  continue  to  impart  to  all,  the  benefits  of  the 
sacred  principles  of  justice.  Like  the  alluvial  soil,  deposited  by 
some  mighty  river,  to  enrich  the  valley  through  which  it  passes,  so 
may  the  common  law  continue,  for  ages  and  generations,  the  rich 
alluvion  thrown  up  by  the  stream  of  time. 

An  intendment  of  law,  indeed  !  What  is  it,  but  to  infer  that  that 
has  been  done  which  we  all  know  has  not  been  done?  Suppose 
one  of  you,  gentlemen,  infers  that  a  paper  was  signed  by  another, 
because  3'ou  have  signed  it  in  his  presence  and  he  did  not  object, 
as  he  had  nothing  to  do  with  it,  and  knew  nothing  at  all  about  it: 
and  suppose  that  paper  to  be  an  obligation  for  the  payment  of  mo- 
ney :  will  you  go  to  a  lawyer  and  say,  I  know"  that  he  did  not  intend 
to  sign  that  paper,  that  he  did  not  know^  that  such  a  paper  was 
signed  in  his  presence :  but  can  not  I  go  into  the  courts  of  law, 
and  compel  him  to  pay,  by  inferring  that  he  did  so  intend?  I 
know  that  you  would  not  sanction  such  monstrous  injustice. 

Well,  suppose  that  either  of  these  gentlemen  had  advertised  these 
defendants  of  what  they  did  intend.  Suppose  they  had  told  them 
"you  will  be  considered  as  having  voted  with  us."  Do  you  sup- 
pose, does  any  man  suppose,  that  they  would  have  given  their 
assent?  Would  they  have  refused  to  vote  on  the  questions  if  they 
had  been  apprised  that  advantage  could  be  taken  of  their  refusal  by 
an  intendment  of  law?  They  oppose  them  by  all  the  means  in  their 
power,  and  shall  they  now  be  considered  as  voting  with  them,  as 
having  acquiesced  in  their  proceedings,  merely  because  they  did 
not  vote  ?  Shall  we  without  a  struggle  yield  to  such  a  desperate 
attempt  to  lay  hold  of  the  whole  property  of  the  Presbyterian 
Church,  and  of  the  church  itself,  by  an  ejectment  of  the  trustees  now 
in  power?  The  gist  of  the  whole  case  is,  they  assume  that  the 
Old  School  party  voted  with  the  New  School  party,  in  the  General 
Assembly  of  1838.  The  whole  case  turns  on  that  point.  Did  we 
vote  with  them  ?  We  did  not.  This  is  admitted.  But  then  they 
assume  that  we  assented  to  their  proceeding  by  refusing  to  vote. 
Did  we  so  assent?  Answer  this  question  affirmatively  if  you  can. 
If  you  cannot,  in  good  conscience,  give  an  affirmative  answer  to 
this  question,  then  dismiss  us,  and  the  relators  must  be  turned  out  of 
court. 

It  is  a  maxim  with  myself,  and  however  others  may  regard  it,  it 
is  one  to  which,  at  the  bar,  I  adhere,  that  "  Show  me  the  fact  of  a 
sound  right  in  equity  and  justice,  and  I  will  find  law  to  support  that 
right:''  and  I  have  not  been  disappointed  in  a  single  instance,  by 
an  adherence  to  this  maxim,  unless  the  present  case  shall  prove  an 


321 

exception.  Now  these  relators  know — they  admit  the  facts  to  be 
against  them ;  and  yet  they  think  to  stand  on  a  mere  technicaUty. 
But,  as  I  will  show  you,  they  can't  stand  even  on  that.  I  trust  that 
when  the  sharp  edge  of  the  law  shall  be  applied,  the  same  spirit 
which  guards  that  law  from  infraction,  will  prevent  its  being  per- 
verted to  be  a  shield  for  injustice,  and  divest  it  of  all  other  effect 
than  the  promotion  of  the  general  good.  And  if  I  did  not  rely  on 
this  spirit  of  the  common  law,  I  would  go  to  a  higher  principle, 
even  the  eternal  providence  of  God,  and  on  that  would  I  rely  to 
prevent  the  perversion  of  these  noble  charities  from  their  legitimate 
object. 

This,  then,  is  one  attitude  in  which  these  parties  stand.  Another, 
in  which  the  relators  stand  before  you,  is  that  of  a  minority  assum- 
ing the  position  and  powers  of  the  majority,  a  majority  in  every 
aspect,  except  the  mere  trick  of  technicality,  in  keeping  our  names 
on  their  roll ;  and  then  stigmatizing  us,  not  as  heterodox  in  faith 
or  doctrine,  but  as  having  acted  with  them,  the  really  heterodox. 
It  is  with  pain  that  I  allude  to  this  proceeding.  Among  the  many 
things  which  are  trying  to  the  feelings  in  connexion  with  these 
transactions,  this  circumstance  is  the  most  so.  To  avoid  the  con- 
clusion that  they  are  a  minority,  they  contend  that  the  Old  School 
members  are  a  part  of  them ;  that  when  they  went  from  Ranstead 
court,  they  went  as  the  whole  General  Assembly,  and  took  us  with 
them ;  and  that  when  they  afterwards  met  in  the  First  Presbyterian 
Church  on  Washington  Square,  the  whole  of  the  General  Assembly 
was  congregated  there,  that  is,  they  had  our  names  on  their  roll. 

If  this  claim  had  been  openly  stated,  its  notorious  contrariety  to 
the  truth  would  have  shocked  every  body.  But  when  this  claim  is 
brought  forward  insidiously,  it  becomes  necessary  to  expose  its  ab- 
surdity by  depicting  it  in  its  true  colours.  The  counsel  erred  egre- 
giously  when  he  gravely  put  the  query,  "  Why  did  we  not  vote 
down  the  proceedings,  if  we  were  the  majority  as  we  claim  to  be  ?" 
He  erred  egregiously,  when  he  inferred  that  our  refusal  to  vote  is 
evidence  that  we  were  not  the  majority.  Suppose  we  had  voted 
with  them,  what  would  have  been  the  consequence?  If  Dr.  El- 
liott, Dr.  M'Dowell,  Mr.  Krebs,  Dr.  Plumer,  Mr.  Breckinridge, 
and  their  associates,  had  participated  in  the  proceedings  of  Dr. 
Patton,  Dr.  Mason,  Mr.  Squier,  Mr.  Cleaveland,  Dr  Beman,  Dr. 
Fisher,  and  their  associates,  the  measures  of  the  New  School  party 
would  have  been 'defeated  altogether.  If,  instead  of  a  simultaneous 
burst  of  disapprobation  from  the  Old  School  party,  with  cries  of 
order,  order!  together  with  Dr.  Elliott  rapping  with  his  hammer, 
we  had  let  them  proceed  quietly,  and  then  voted  with  them,  we 
would  have  voted  them  out  of  the  house;  and  that  "in  the  shortest 
time,  in  the  fewest  words,  and  with  the  least  interruption''  to  the 
regular  proceedings.  Nay,  further,  if  we  had  participated  with 
them,  we  could  have  followed  them  into  the  street,  or  gone  with 
them  to  Washington  Square,  and  have  voted  them  out  of  the  house 
there  also.  Did  they  expect  us  to  do  so  ?  With  what  joyous  exul- 
tation their  kind  hearts  would  have  welcomed  the  defeated  and  sup- 
pliant majority.    We  could  thus  have  followed  them  from  one  house 


322 

to  another,  and  voted  them  out,  until  we  had  voted  them  out  of 
the  city  of  Philadelphia.  We  might  have  pursued  the  same  course 
until  we  had  voted  them  clear  into  the  excinded  synods.  Such 
would  have  been  the  efiect,  if  we  had  acted  with  them.  It  is  there- 
fore manifest  that  we  did  not  vote  with  them.  For  if  we  had  so 
voted,  they  could  not  have  found  a  resting  place  short  of  the  ex- 
cinded synods,  if  they  could  even  there. 

But  why  pursue  this  course  of  beating  round  the  compass.  Let 
us  come  to  the  point  at  once.  Did  they  intend  that  we  were  of 
them  ?  Does  the  law  so  intend  ?  Or  did  they  intend  to  supplant 
us,  and  wrest  from  us  the  control  of  the  whole  of  the  charitable 
beneficences  of  the  church,  together  with  the  Theological  Seminary 
at  Princeton?  What  else  can  we  suppose,  when  we  are  told  that 
we  are  not  the  Presbyterian  Church  by  a  mere  intendment  of  law? 
That  we  are  thus  to  be  considered  as  having  been  personally  pre- 
sent in  their  Assembly,  when,  if  we  had  been  there  and  voted  w-ith 
them,  we  could  have  voted  them  out  of  the  house  ? 

But  I  will  proceed  to  a  third  point  in  the  argument  of  my  learned 
friend.  He  inquires  "  who  are  they?"  but,  like  some  of  his  clients, 
he  forgot  to  reverse  the  question,  and  ask  "  who  are  we?"  I  will 
endeavour  to  examine  both  inquiries.  It  was  a  position  of  my 
learned  friend,  though  one  in  which  he  was  entirely  mistaken,  that 
we  are  identified  with  them  in  their  proceedings,  because  the  ques- 
tion was  put  to  the  house  by  a  member  of  that  house  in  our  pre- 
sence. He  omitted  to  state  that  the  question  was  not  reversed. 
Mr.  Cleaveland,  in  his  haste  and  perturbation,  forgot  to  reverse  the 
question,  and  Dr.  Beman  also  forgot  to  instruct  Dr.  Fisher  that  he 
must  be  governed  in  his  conduct  as  moderator  by  the  same  rules 
that  his  predecessors  had  been.  I  know  the  learned  counsel  on  the 
other  side  treated  this  as  a  very  small  matter;  but  I  will  presently 
show  you  that  it  is  important.  Why  did  Dr.  Beman  forget  this  im- 
portant duty,  which  is  expressly  required  of  him  by  the  discipline  of 
the  church?  I  have  put  this  query,  and  I  will  answer  it.  He  did 
not  know  what  the  discipline  of  the  church  required,  and  Dr.  Fisher 
did  not  know  how  many  members  constituted  a  quorum.  They 
were  ignorant  of  what  the  rules  of  order  required,  and  yet  you 
have  been  told  that  we,  the  Old  School  men,  are  "the  juvenile  pa- 
triarchs of  the  church."  They,  forsooth,  are  the  older  and  more 
experienced,  and  we  are  the  younger  members.  They  are  the  se- 
niors, and  we  the  juniors.  Who  are  these  juvenile  patriarchs,  with 
an  account  of  whom  the  counsel  amused  you?  Is  that  (pointing  to 
Dr.  Green)  one  of  these  young  men?  Is  that  the  youth  to  whom 
he  alluded?  You  may  search  the  world  over  for  such  another 
youth,  whose  seared  brow  has  borne  the  frost  of  more  than  seventy 
winters,  as  his  "  locks  of  silver  grey  disclose."  Is  that  venerable 
man,  who  was  engaged  in  political  controversy  before  his  religious 
influence  was  so  extensively  felt  as  it  has  since  been,  who  shed  his 
blood  in  the  cause  of  American  Liberty  in  the  war  of  the  revolu- 
tion, before  he  became  the  head  of  the  Presbyterian  Church — is  he 
to  be  sneered  at,  and  termed  a  youthful  patriarch  by  those  who  have 
grown  up  under  his  auspices,  and  owe  what  little  influence  they 


323 

now  possess  to  his  fostering  care?  Or  did  the  counsel  allude  to  the 
venerable  Dr.  Alexander  ?  Who  is  he,  and  where  is  he,  that  has 
dared  to  raise  a  parricidal  hand  against  the  venerable  institutions 
which  he  and  such  as  he  have  reared  ? 

I  should  like  that  you  should  look  at  either  of  these  venerable 
men,  whose  gray  hairs  and  bent  bodies  "  proclaim  their  lengthened 
years,"  and  ask  yourselves  if  they  are  the  juvenile  patriarchs  who 
would  destroy  the  church  of  their  fathers!  And  now,  to  reverse 
the  question,  who  are  they  of  the  other  side?  Ah,  who  are  they? 
Gentlemen,  we  have  come  to  the  conclusion  that  the  New  School 
church  is  the  true  one,  because  they  have  differed  from  Dr.  Green 
and  Dr.  Alexander,  these  inexperienced  juvenile  patriarchs;  and 
by  these  statistics  of  age,  I  judge  that  they  must  be  the  oldest.  But 
has  any  one.  Old  School  or  New  School,  man,  woman  or  child, 
said  that  we  are  not  Presbyterians?  Do  they  not  concede  that  we 
are :  that  Drs.  Green,  Miller,  Piumer,  M'Dowell,  and  others,  are  up- 
to-the-hub,  true-blue  Presbyterians? 

But  is  their  party  Presbyterian?  Can  both  be  Presbyterians? 
Can  they  be  Presbyterians  whilst  they  acknowledge  Congregational 
churches  ?  If  you  call  in  an  unlettered  Presbyterian,  he  may  tell 
you  that  this  is  not  an  important  matter,  that  it  is  a  mere  dispute 
about  words.  He  may  tell  you,  as  one  of  the  witnesses  told  you, 
that  he  was  once  a  Congregationalist,  then  a  Presbyterian,  and 
then  a  Congregationalist.  Why,  it  seemed  that  some  of  them  have 
travelled  about  the  country  with  an  assortment  of  creeds  in  their 
pockets,  to  suit  purchasers,  and  that  they  have  found  a  ready  mar- 
ket amongst  those  who  could  change  their  religion  with  as  much 
facility  as  they  could  change  their  coats.  A  Presbyterian  or  Con- 
gregationalist coming  from  a  section  of  country  where  Congrega- 
tionalists  and  Presbyterians  were  intermingled,  attached  himself  to 
one  or  the  other  of  these  churches,  as  might  suit  his  convenience. 
My  learned  friend  depicted  to  you  a  lisping  infant  bowed  in  prayer 
at  its  mother's  knee.  I  wish  I  could  command  the  beautiful  lan- 
guage in  which  he  described  the  thrilling  scene  with  that  kneeling 
infant.  But  it  happens  that  they  among  whom  that  scene  occurred 
are  Congregationalists,  and  the  infant  by  its  mother's  side  became 
contaminated  by  this  Congregational  heresy,  which  has  been  prey- 
ing on  the  very  vitals  of  that  body  to  which  it  has  attached  itself 
as  an  exotic.  Congregationalists  have  thus  been  coming  in  amongst 
us  insidiously  for  years,  and  when  an  attempt  was  made  to  purify 
the  church  by  excluding  the  Congregationalists,  this  New  School 
party  was  so  deeply  imbued  with  the  Congregational  heresy,  that  thev 
made  common  cause  with  them.  They  then  are  not  Presbyterians, 
but  Congregationalists.  Who  then  are  the  Presbyterians?  Did  we 
exhibit  any  thing  of  this  kind  ?  We  certainly  did  not.  We  desired 
to  check  the  growth  of  heresy,  by  admitting  none  to  the  commu- 
nion of  the  church  who  were  not  strictly  Presbyterian  in  faith  and 
practice.  And  if  you  decide  against  us,  and  by  your  verdict  sav 
that  we  are  not  the  Presbyterian  Church,  and  that  they  are,  you 
will  give  the  whole  property  of  the  Presbyterian  Church  to  Congre- 
gationalists and  the  associates  and  advocates  of  Congregationalists. 


324 

The  next  position  in  the  case  is  this.  They  brought  us  here. 
The  third  Thursday  in  May,  1838,  was  a  memorable  day,  a  day 
never  to  be  forgotten  in  the  annals  of  the  Presbyterian  Church. 
And  here  we  come  to  the  git  of  the  whole  case.  You  are  aware  of 
what  took  place  in  Ranstead  court  on  that  day,  when  through  the 
aisles,  and  from  the  portals  of  that  church,  swept  a  loose  disorderly 
and  disjointed  mass  of  men.  It  was  then  that  the  black  cloud, 
which  had  been  for  several  years  increasing,  burst  in  all  its  fury. 
Then  from  that  portentous  cloud,  falls  a  boll  of  lightning,  aimed  at 
the  head  oi  that  venerable  man,  (Dr.  Green,)  and  we  ask  you,  shall 
it  be  suffered  to  strike  his  silvered  locks  to  the  ground.  The  one 
;ict  by  which  they  bring  us  before  this  court  is,  that  desperate  blow 
by  which  they  have  sought  to  strike  Presbyterianism  to  the  ground. 
An  act  which  too  plainly  says,  "  we  want  the  money,  and  we  can't 
trust  you  with  it."  All  this  they  propose  to  accomplish  by  a  mere 
intendment  of  law.     This  is  the  issue,  and  the  only  issue  before  you. 

Gentlemen  of  the  Jury,  I  have  endeavoured,  in  the  first  place,  to 
state  to  you  the  nature  of  the  question  at  issue.  I  then  reviewed 
some  of  the  circumstances  attending,  and  the  relative  position  of 
the  respective  parties  before  you.  I  then  called  your  attention  to 
that  portion  of  the  argument  of  the  gentleman  who  preceded  me, 
on  which  the  whole  case  rests.  I  showed  you  that  the  relators  did 
not  expect  to  succeed  in  establishing  their  claim,  unless  ihey  can 
succeed  by  an  intendment  of  law ;  unless  the  General  Assembly  of 
1838  be  presumed  to  have  acquiesced  in  the  proceedings,  by  which 
the  relators  in  this  case  have  been  enabled  to  come  into  this  court. 
The  question  of  legal  intendment  is  a  matter  for  the  judge  to  decide. 
For  if  his  honour  instructs  you  that  there  are  certain  circumstan- 
ces in  which  a  question  must  be  settled  by  such  intendment,  then,  if 
the  circumstances  of  this  case  are  of  that  character,  the  whole 
case  turns  on  a  point  of  order,  and  it  is  not  for  me  to  disparage  the 
rules  of  parliamentary  order.  They  are  unquestionably  of  great 
importance,  are  necessary  to  the  transaction  of  business,  and 
cannot  be  departed  from  without  danger.  The  ends  of  justice 
are  best  subserved  by  adhering  to  them.  These  rules  are  not,  as  the 
learned  gentleman  has  said,  of  little  importance.  Indeed,  it  seems  a 
little  strange  that  he  should  speak  lightly  of  them,  when  his  whole 
case  may  turn  on  a  point  of  order,  and  the  very  lightest  of  them. 

The  plaintiffs  in  this  case  exhibited  themselves  in  this  light. 
They  have  placed  their  sole  reliance  on  the  construction  of  a  rule 
of  order;  and  this  is  it:  (Rule  30,)  "silent  members,  unless  excu- 
sed from  voting,  must  be  considered  as  acquiescing  with  the  ma- 
jority." Of  so  slight  authority  was  this  rule  considered,  that  Dr. 
Beman,  when  he  inducted  Dr.  Fisher  into  the  office  of  moderator, 
gave  him  instructions  to  govern  himself,  not  by  this  and  the  other 
rules  which  had  been  previously  adopted  by  the  General  Assembly, 
but  b\'  the  rules  which  should  be  subsequently  adopted,  that  is,  by 
an  ex  post  facto  law.  This  is  on  the  principle,  which  our  opponents 
sometimes  find  convenient,  that  these  rules  are  not  binding  on  any 
Assembly,  until  re-enacted  by  themselves.  And  yet  it  is  only  by 
one  of  these  rules  that  they  can  come  at  all  into  this  court.     But  I 


325 

am  willing  in  this  case  to  concede  that  this  rule  was  in  existence, 
and  that  if  they  have  brought  themselves  within  its  application,  you 
must  give  them  a  verdict. 

It  then  becomes  necessary  to  consider  under  what  circumstances 
silent  members  are  to  be  held  as  acquiescing  with  the  majority.  I 
admit  that  if  the  question  is  fairly  put  in  a  deliberative  body,  and 
one  portion  of  that  body  refuses  to  vote,  they  are  to  be  considered 
as  acquiescing  in  the  will  of  the  majority  of  those  who  did  vote.  I 
admit  that  this  is  an  established  rule  of  parliamentary  law.  But  in 
this  case,  tvas  the  question  put?  That  is,  was  it  legally  put?  Was 
it  put  in  accordance  with  the  usages  and  requisitions  appropriate  to 
the  case?  Was  it  put  in  an  audible  voice  and  in  proper  terms,  nnd 
was  it  reversed  ?  For  unless  all  these  circumstances  were  attended 
to  inputting  the  question,  it  was  not  legally  put.  All  the  members 
must  have  an  opportunity  of  hearing  the  question  put,  or  they  can- 
not be  considered  as  having  acquiesced  in  the  decision  because  they 
did  not  vote.  The  learned  gentleman  stated  in  summing  up  his 
argument,  that  it  had  been  proved  that  the  question  was  put  and 
reversed  in  a  proper  shape,  and  loud  enough  to  be  heard.  But  he 
omitted  to  state  a  most  important  principle  of  parliamentary  law, 
that  the  question  must  be  put  b\''  a  coiwpeteyit person.  He  avoided 
the  mention  of  this  most  important  principle.  He  evaded  it,  and 
that  during  the  consideration  of  a  case,  the  decision  of  which  de- 
pends on  a  question  of  order!  I  state  it  as  one  of  the  most  impor- 
tant questions  submitted  to  you  in  this  case ;  was  he  who  put  the 
question,  the  proper  person?  For  every  question  must  be  put  by  a 
competent  person,  and  that  person  is  the  presiding  officer,  the  pre- 
sident or  speaker,  and  in  this  case  it  was  the  moderator.  And  not 
only  this,  but  the  question  must  be  put  at  a  proper  time  also.  Re- 
collect that  we  are  now  discussing  a  question  of  order.  Questions 
must  be  parliamentary  in  their  character  in  all  points,  and  pertinent 
to  the  business  of  the  house,  if  they  are  to  claim  the  attention  of  a 
deliberative  body.  If  one  party  proposes  questions  which  are  in 
their  very  nature  disorderly,  the  other  party  is  not  bound  to  notice 
them,  or  to  give  their  sanction  to  disorder  by  voting  on  them  either 
affirmatively  or  negatively.  It  does  not  fit  the  case,  to  say  that  we 
might  have  voted  on  the  question  if  we  were  disposed,  because  they 
must  show  that  they  acted  orderly  in  all  points,  to  sustain  their  as- 
sumption that  we  acquiesced  in  their  decision.  I  then  repeat  the 
inquiry,  was  Mr.  Cleaveland's  motion  put  ?  To  put  a  question 
requires  a  proper  person.  This  rule  implies  an  agreement,  in  the 
nature  of  a  contract.  The  members  place  themselves  on  the 
ground  of  contracting  parties,  by  agreeing  to  and  adopting  certain 
rules  of  order  for  their  government.  The  presiding  officer  contracts 
to  do  certain  acts,  and  to  preserve  order  according  to  certain  rules  ; 
and  the  members,  on  their  part,  contract  to  abide  by  his  decisions 
made  in  accordance  with  those  rules,  and  that  all  decisions  shall  be 
in  accordance  with  the  will  of  the  majority.  One  provision  of  this 
contract  is,  that  all  questions  shall  be  properly  put  to  the  house,  and 
by  a  proper  person,  and  that  when  so  put,  those  who  abstain  from 
voting  shall  be  accounted  to  acquiesce  in  the  decision  of  the  ma- 

28 


326 

jority.     Could  Cleaveland,  then,  have  been  the  proper  person   to 
put  any  question  in   that  Assembly,  not  that  particular  question 
merely,  but  any  question  whatever?     Was  he  authorized  to  get  up 
in  that  Assembly,  setting  aside  all  rules  of  order,  and  put  a  question 
to  the  house  for  its  consideration.     JSuch  a  procedure  had  not,  I  be- 
lieve, occurred  in  the  history  of  the  Presbyterian  Church  from  her 
first  organization,  down  to  the  meeting  of  the  General  Assembly  in 
1838.     Such  a  thing  as  for  a  member  on  the  floor  to  rise,  make  a 
motion,  and  then  put  that  motion   to  the   house,  has  not  occurred 
from  the  date  of  the  Wittenagemote  down  to  the  present  time.     Did 
any  of  you  ever  hear  of  any  such  thing  having  occurred  in  the  pro- 
ceedings of  Congress,  or  of  the  legislature  of  your  own  state,  as  for 
a  private  member  to  rise  and  put  a  question  without  even  submit- 
ting it  to  the  speaker?     No  such  thing  has  ever  occurred,  and  they 
have  not  produced  a  single  sentence  either  of  the  rules  of  order  of  the 
Presbyterian  Church  or  general  parliamentary  law,  that  will  justify 
such   a  course.     I  make  the  broad  assertion,  and  without  fear  of 
contradiction,  that  they  cannot  produce  a  single   instance  of  that 
kind.     There  is  not  an  instance  to  be  found  in  the  records  of  any 
deliberative  body,  even  in  a  political  caucus,  a  debating  club,  or  a 
ward  meeting.     Even  there,  the  question  is  always  put  by  their  own 
officers.     Amidst  the  convulsing  and  turbulent  scenes  of  the  British 
parliament,  and  even  of  the  French  revolutionary  tribunal,  a  mea- 
sure so  revolutionary  in  its  character  is  not  to  be  found.     IJeflect, 
gentlemen,  what  may  be  the  consequences  if  such  a  course  of  pro- 
ceeding is  sanctioned.     A  dozen  of  conspirators  may  thus  defeat  all 
business  in  bodies  of  this  kind,  or  in  an  Assembly  which  is  composed 
of  half  a  dozen  parties,  any  one  may  rise  and  get  a  half  a  dozen  of 
his  partisans  around  him  and  thus  half  a  dozen  cliques  be  formed, 
each  desirous  to   carry  its  particular  or  favourite  measure,  and 
each  proclaim  itself  the  constitutional  body.     Must  we  acquiesce 
in  such  scenes  of  confusion  as  would  entirely  destroy  deliberative 
and  legislative  bodies?     Every  deliberative  body  must  have  some 
mode  to  ascertain  the  judgment  of  its  members,  as  it  is  impossible 
to    transact    business  without  order ;    and    the    mode    universally 
adopted  by  such  bodies,  is,  that  no  question  can  be  put  to  the  body 
but  by  or  through  its  presiding  officer.     And  if  you  find  an  Assem- 
bly without  any  rules  of  order  and  without  any  head,  what  do  you 
observe  but  a  confused,  disorderly,  violent  and  lawless  mob,  where 
evcTy  man   acts  according  to  the  dictates  of  his  own  folly  or  ca- 
price?    If  a  private  member  of  his  own  mere  motion  rise  up  and 
seize  the  reins  of  government,  he  is  an  usurper.     If  he  should  suc- 
ceed in  such  a  disorderly  course  it  would  be  a  revolution,  and  if  he 
did  not  succeed  it  would  be  rebellion.     The  diflerence  is  simply  in 
the  result,  and  in  either  case,  though  it  may  be  righteous,  and  done 
for  good  reason,  and  the  participators  in  it  be  virtuous  and  good 
men,  yet  it  is  usurpation,  and  usurpation  is  not  to  be  tried  by  rules 
of  law  in  this  court.     It  is  a  great  mistake  and  a  narrow  view  of 
the  case  for  a  party  or  faction  to  assume  that  a  mere  motion  of  a 
member  in  a  deliberative  body  necessarily  puts  it  in  posses.sion  of 


327 

the  question.  I  might  as  well  put  a  question  to  the  spectators  in 
this  crowded  room,  and  if  they  remain  silent  say  to  them,  very 
well,  gentlemen,  "  silence  gives  consent,"  and  then  go  away  and 
proclaim  that  the  whole  house  is  with  me  on  that  question.  Or 
suppose  I  now  claim  of  you  a  verdict  for  these  defendants.  Sup- 
pose I  put  the  question  to  you,  "gentlemen,  have  you  decided  in  our 
favour?"  and  you  remain  silent,  as  no  doubt  you  would,  may  I  not 
say  that  you  have  acquiesced  in  what  I  demand,  that  you  have 
already  decided  in  favour  of  our  claim?  If  I  should  do  so,  and  go 
away  and  report  that  we  have  gained  the  great  cause  of  the  Pres- 
byterian Church,  and  in  a  day  or  two  afterwards,  when  you  should 
be  called  on  in  a  very  different  manner,  by  his  honour,  from  that 
bench,  you  should  give  the  verdict  the  other  way,  would  not  my 
position  be  rather  awkward?  The  reason  is,  that  I  am  not  the 
proper  person  to  put  the  question  to  you,  neither  is  this  the  proper 
lime  to  put  it,  nor  are  you  in  duty  bound  to  respond  to  a  question, 
if  put  by  any  other  than  the  honourable  judge  of  this  court.  Gen- 
tlemen, what  is  putting  a  question?  Is  it  the  proposing  of  a  ques- 
tion by  an  unauthorized,  or  by  an  authorized  individual?  In  a 
deliberative  body  when  a  member  rises  and  says  "I  move  that  such 
a  course  of  proceeding  be  adopted,"  he  acts  in  accordance  with  an 
acknowledged  right.  But  having  made  his  motion,  other  rights  in- 
tervene, to  take  up  that  motion  and  put  it  to  the  house.  For  this 
there  is  an  express  requisition  of  parliamentary  law,  noted  in  2d 
Hatsell.  I  will  read  to  your  honour  an  authority  which  has  been 
considered,  ever  since  its  publication,  the  very  best  on  the  subject, 
since  all  subsequent  treatises  have  reference  to  it.  He  says,  on 
page  105,  "  It  was  the  ancient  practice  for  the  speaker  to  collect 
the  sense  of  the  house  from  the  debate,  and  from  thence  to  form  a 
question  on  which  to  take  the  opinion  of  the  house ;  but  this  has 
been  long  discontinued:  and  at  present  the  usual  and  almost  uni- 
versal method  is,  for  the  member  who  moves  a  question  to  put  it 
in  writing,  and  deliver  it  to  the  speaker;  who,  when  it  has  been 
seconded,  proposes  it  to  the  house,  and  then  the  house  are  said  to 
be  in  possession  of  the  question." 

I  have  preferred  to  quote  Hatsell,  in  his  exposition  of  this  funda- 
mental law,  in  his  own  words.  He  was  followed  by  Jefferson, 
who,  in  his  Manual,  lays  down  the  same  principles. 

The  counsel  complained  that  we  had  presented  these  rules  before 
in  little  books,  but  I  trust  that  I  have  now  produced  one  big  enough 
to  satisfy  him.  Every  deliberative  body  places  itself  under  the 
control  of  a  responsible  head,  from  whom  alone  it  can  receive 
questions  proposed  for  its  deliberation,  and  that  head  or  presiding 
officer  occupies  a  conspicuous  position,  like  that  occupied  by  his 
honour,  the  presiding  judge  of  this  court,  so  that  he  can  see  and 
hear  all  that  passes  in  the  house.  His  being  thus  placed  is  not  a 
mere  accidental  circumstance,  but  a  form  of  substantial  conveni- 
ence in  the  transaction  of  business.  Otherwise,  interminable  em- 
barrassment, riot  and  confusion  would  inevitably  follow,  and  the 
transaction  of  business  would  be  rendered  impracticable.  But  we 
are  not  left  to  Hatsell  or  Jefferson  alone  to  supply  us  with  a  rule  on 


328 

this  occasion.  I  will  appeal  directly  to  the  rules  of  order  of  the 
General  Assembly  itself,  which  destroys  at  once  the  cause  of  our 
opponents.  That  very  Assembly  of  1838  adopted  this  rule,  which 
I  read  from  the  Assembly's  Digest,  page  25,  rule  6.  "A  motion 
made  must  be  seconded,  and  afterwards  repeated  by  the  moderator, 
or  read  aloud,  before  it  is  debated;  and  every  motion  shall  be  re- 
duced to  writing,  if  the  moderator  or  any  member  require  it." 

That  it  was  necessary  to  conform  to  this  rule  they  admit,  for  the 
gentlemen  have  asked  every  witness  the  question,  "Was  the  motion 
seconded  ?"  though  they  seem  to  have  forgotten  one  part  of  this 
rule,  which  is  separated  from  the  other  only  by  a  comma. 

Now  I  put  it  to  you  to  say  if  the  General  Assembly  of  1838  was 
put  in  possession  of  the  question.  The  rule  which  I  have  just  read 
requires  that  a  motion  when  made  must  be  put  by  the  moderator. 
Was  the  question  so  put  by  the  moderator?  At  what  time,  by  an 
intendment  of  law,  was  he  supposed  to  have  put  the  question?  The 
rule  requires  that  the  question  must  be  put  by  the  moderator,  after 
it  has  been  repeated  or  read  aloud  by  him,  and  not  before.  The 
moderator,  and  the  moderator  only,  has  a  right  to  put  the  question 
to  the  house,  and  he  who  usurps  that  authority  is  acting  in  a  rebel- 
lious manner,  and  it  was  the  right  of  the  other  members,  nay  it  was 
their  duty,  to  call  him  to  order. 

Mr.  Cleaveland,  in  usurping  the  place  of  the  moderator,  trampled 
on  the  rules  of  order  and  put  himself  without  the  pale  of  the  law. 
What  he  did,  therefore,  was  not  obligatory  on  any  member  of  the 
Assembly,  nor  could  any  one  be  bound  to  vote  on  a  question  put  by 
him.  Well,  let  me  not  be  ansv\ered  that  a  case  of  e^w^me  neces- 
sity may  occur,  where  the  moderator  will  not  put  the  question.  I 
know  of  no  right  existing  under  any  circumstances  for  a  private 
member  to  rise  and  put  a  question.  If  he  was  competent  thus  to 
bind  the  members  in  this  case,  he  might  have  usurped  the  power 
of  the  moderator  altogether,  and  had  in  his  hands  nine-tenths  of  the 
whole  power  of  the  General  Assembly. 

"Necessity  is  the  tyrant's  plea." 

It  knows  no  law,  and  is  bound  by  no  principle.  Shall  he  not  on 
this  plea  of  necessity  usurp  the  office  of  the  clerks,  by  accusing 
them  of  having  refused  to  do  their  duty?  Why  did  he  not  consti- 
tute himself  clerk?  Was  not  the  case  of  the  clerks  a  case  of  ne- 
cessity, which  would  have  authorized  him  to  seize  the  pens,  himself 
complete  the  roll,  and  usurp  every  function  of  the  Assembly  as  well 
as  that  of  the  moderator? 

If  then  the  question  was  not  legally  pur,  were  we  bound  to  vote? 
No.  They  had  a  right  to  frown  down  every  attempt  to  take  away 
their  rights.  They  knew  full  well  that  if  the  moderator  put  a  ques- 
tion, it  was  their  duty  to  vote  on  that  question,  but  if  another  per- 
son put  a  question  to  their  injury,  they  were  not  bound  to  acknow- 
ledge his  right  so  to  do.  If  Mr.  Cleaveland  had  put  his  question  to 
the  moderator,  and  the  moderator  had  put  it  to  the  house,  and  the 
members  had  then  been  silent,  they  might,  by  an  intendment  of  law, 


329 

t 
have  been  accounted  to  have  acquiesced,  because  they  would  have 
understcod  the  question,  and  have  known  that  it  was  put  by  the 
proper  officer. 

Here  is  a  regular  system  of  government.  But  a  private  member 
gets  up  and  proposes  to  take  the  government  into  his  own  hands, 
and  every  one  who  does  not  utter  his  dissent  is  considered  as  acqui- 
escing in  his  usurpation.  By  such  an  assumption  it  is  an  easy  mat- 
ter to  create  a  constructive  majority  in  submission  to  the  will  of  the 
usurper.  By  such  an  usurpation  Caesar  triumphed  over  the  Roman 
senate,  and  substituted  his  own  will  for  the  laws  of  his  country. 
Every  tyrant  that  has  trampled  on  the  liberties  of  his  country 
has  succeeded  by  similar  means.  By  such  an  usurpation  of  power 
did  Oliver  Cromwell  enter  the  English  parliament,  pluck  the  speaker 
from  his  chair,  and  lake  the  government  into  his  own  hands.  And 
by  a  similar  process  did  that  arch-usurper,  Napoleon  Bonaparte, 
ascend  the  imperial  throne  of  France.  He  entered  the  council  of 
five  hundred,  ascended  the  tribune,  put  questions  by  the  list,  and 
carried  them,  regardless  of  the  will  of  the  representatives  elected 
by  the  people,  by  his  train  bands  crying  aye,  aye,  AYE ! 

It  would  be  a  waste  of  time  to  argue  this  position,  that  an  official 
organ  must  put  the  question,  or  the  house  is  not  in  possession  of  it; 
and  that  when  the  house  is  not  in  possession  of  the  question,  the 
members  cannot  vote.     But  then,  the  plea  of  necessity — and  what 
are  the  pleas  of  necessity,  that  Cleaveland  should  state  the  ques- 
tion?    I  beg  you,  now,  to  remark  that  from  his  own  statement,  it 
does  not  appear  that  there  was  any  necessity  that  he  should  occupy 
the  position  in  which  he  placed  himself.     What  does  he  do  ?     He 
rises  with  a  paper  in  his  hand,  commencing  with  a  formal  "whereas." 
He  reads  and  comments,  but  he  submits  no  motion  whatever  to  the 
moderator.     He  refuses  to  put  the  moderator  in  possession  of  his 
motion.     He  did  not  address  the  moderator  by  his  title,  *'  Mr.  Mo- 
derator," but  turns  away  from  him,  and  when  he  thus  refuses  to  put 
the  moderator  in  possession  of  his  motion,  he  has  no  right  to  say 
that  the  moderator  refused  to  put  the  question  to  the  house.     Had 
he  then  any  personal  grievance  to  complain  of?    Now  if  he  had  put 
his  motion  to  the  moderator,  and  the  moderator  had  refused  to  put 
it  to  the  house,  then,  however  disorderly,  I  admit  that  he  might 
have  had  some  pretence  for  appealing  to  the  Assembly.     Had  Mr. 
Cleaveland's  seat  been  denied  him,  as  was  the  case  with  Mr.  Squier, 
there  might  have  been  some  pretext  or  apology  for  such  a  strange 
proceeding;  but  as  there  had  been  no  such  denial  on  the  part  of  the 
moderator,  he  had  no  excuse,  not  even  the  shadow  of  a  pretext,  for 
proceeding  in  a  manner  which  said,  in  the  eloquent  language  of  the 
action,  I  choose  to  depose  you,  and  appoint  myself  moderator  pro 
hac  vice.     But  Mr.  Cleaveland  could  not  justly  complain  of  the  mo- 
derator's conduct  towards  himself.     He  had  suffered  nothing.     He 
had  not  given  Dr.  Elliott  a  chance  to  receive  the  motion.     He  did 
not  present  his  motion  to  him.     Dr.  Elliott  did  not  refuse  to  put  the 
question,  and  no  man  has  a  right,  either  in  law  or  equity,  to  say  ihat 
he  would  have  refused  to  put  it  to  the  house,  if  he  had  been  re- 
quested so  to  do.    I  believe  he  would  have  received  the  motion,  and 

28* 


330 

put  the  question  nimseif,  on  a  motion  for  his  own  removal,  and  he 
would  have  submitted  to  the  decision  of  the  General  Assembly, 
Such  a  motion  vi^ould  not  have  been  considered  personal  to  Dr. 
Elliott.  By  his  putting  the  question  himself,  his  feelings  would  have 
been  spared.  But  if  he  refused  to  put  the  question,  an  appeal  might 
have  been  made  to  the  General  Assembly.  And  it  is  to  be  pre- 
sumed that  no  presiding  officer  whatever  would  act  in  opposition 
to  the  will  of  the  majority  of  the  house.  If  he  did,  the  power  to 
remove  him  from  office  is  vested  in  the  house.  Now,  if  it  were 
necessary  to  remove  the  presiding  officer,  a  motion  to  that  effect 
must  be  put  to  the  house  through  the  presiding  officer,  and  if  he 
refuse  to  put  the  question,  then  through  the  next  official  dignitary 
of  the  house.  If  the  motion  had  been  submitted  to  the  moderator, 
and  he  had  put  the  question  to  the  house,  he  might  have  been  re- 
moved, as  in  the  case  of  Dr.  Beman  in  1835.  Then  Dr.  Elliott 
would  have  said,  "If  it  is  the  wish  of  the  house  to  turn  me  out,  I 
submit  to  it."  But  Mr.  Cleaveland  chose,  ex  mero  motu,  to  assume 
the  functions  and  clothe  himself  with  all  the  paraphernalia  of  the 
highest  officer  in  the  General  Assembly, — and  claims  to  exercise 
those  powers  in  the  face  of  the  whole  Assembly,  notwithstanding 
a  regularly  elected  and  properly  constituted  officer  then  occupied 
the  chair.  And  there  were  some  half  a  dozen  other  persons  on  the 
floor  of  the  house,  who  had  been  elected  to  the  office  in  previous 
years,  and  therefore  were  the  proper  persons,  instead  of  Mr.  Cleave- 
land, if  there  was  occasion  for  any  other  than  Dr.  Elliott  to  fill  the 
place  of  moderator.  Well,  under  these  circumstances  Mr.  Cleave- 
land executed  his  purpose,  organized  an  Assembly,  and  upon  this 
organization  the  relators  in  this  case  rest  their  claim.  If  there  had 
been  a  necessity  for  the  removal  of  the  moderator,  what  was  the 
proper  course  for  them  to  take?  Why  to  say,  Mr.  Moderator,  I 
move  that  the  next  preceding  moderator  present  take  your  place. 
That  was  the  motion  in  1835.  If  they  failed  in  this,  or  the  next 
preceding  moderator  was  not  present,  they  must  resort  to  the  one 
still  preceding  him,  and  so  on,  ad  infinitum. ;  every  individual  who 
had  filled  that  office  being  entitled  to  the  precedence,  over  any  one 
who  had  not  filled  it. 

When  Mr.  Cleaveland  and  those  who  acted  with  him  undertook 
in  this  manner,  in  the  face  of  the  General  Assembly,  by  indirection, 
to  remove  the  moderator  from  his  office,  by  declaring  that  they  had 
elected  another,  for  the  double  purpose  of  filling  the  office  and  of 
turning  out  the  present  incumbent,  they  aimed  a  deadly  blow  at  his 
devoted  head.  They  make  a  personal  attack,  and  wound  his  feel- 
ings to  the  very  utmost.  They  in  eflect  declare  to  him  and  to  the 
world,  that  they  place  no  confidence  in  him,  and  consequently  they 
will  not  entrust  him  with  the  motion.  They  declare  that  he  has 
forfeited  his  office  by  misconduct,  and  that  half  a  dozen  members 
on  the  floor  of  the  house  have  a  right  to  depose  him  at  their 
sovereign  will  and  pleasure.  They  in  eflect  declare  that  they  have 
a  right  to  take  from  him  the  insignia  of  office,  to  degrade  him  in 
the  view  of  his  fellow-men  and  in  the  face  of  the  General  Assem- 
bly, by  thus  declaring  him  to  be  unworthy  of  confidence.     At  every 


331 

step  of  these  proceedings  the  rights  of  the  General  Assembly  were 
invaded  in  the  person  of  the  moderator,  as  were  also  the  rights  of 
half  a  dozen  others  who  had  previously  been  moderators.  Recol- 
lect, I  now  speak  of  Mr.  Cleaveland.  I  say  nothing  now  of  Dr. 
Beman  :  I  will  refer  to  him  at  a  proper  time.  A  high-minded  and 
honourable  man  will  always  prefer  encountering  the  undisguised 
attacks  of  an  open  enemy,  to  the  insidious  designs  of  the  dastardly 
and  cowardly  assassin,  who  stabs  with  the  stiletto  in  the  dark,  or 
accomplishes  his  hateful  purpose  by  indirection. 

It  would  be  a  latitudinarian  doctrine,  indeed,  that  would  sanction 
such  a  course  of  proceeding,  and  nothing  can  be  more  dangerous 
to  both  civil  and  religious  liberty,  than  latitudinarian  and  agrarian 
doctrines  of  construction.  Such  doctrines  lead  to  disorder,  to  con- 
fusion, and  to  anarchy,  which  is  the  commencement  of  tyranny  and 
despotism.  If  Mr.  Cleaveland's  object  was  to  remove  the  modera- 
tor without  "discourtesy"  towards  him,  or  aiming  a  stab  at  his  feel- 
ings and  reputation,  his  object  would  have  been  attained  by  simply 
rising  in  his  place,  and  saying,  "Mr.  Moderator,  I  move  that  the 
next  preceding  moderator  take  your  place."  That  was  the  motion 
in  1835,  when  Dr.  Beman  was  removed  from  the  chair  by  a  vote 
of  the  General  Assembly,  and  Dr.  William  M'Dowell  was  put  in 
his  place;  and  no  doubt  if  a  similar  course  had  been  taken  by  Mr. 
Cleaveland  and  his  associates  in  1838,  Dr.  Elliott  would  have  acted 
on  the  occasion  precisely  as  Dr.  Beman  did  in  1835.  He  would 
have  retired  from  the  chair  without  a  murmur.  But  they  were  not 
satisfied  to  proceed  in  this  open  and  undisguised  manner.  They 
undertook  the  accomplishment  of  their  purpose  by  indirection,  and 
they  thus  violated  the  rule  of  order  which  was  the  law  in  relation 
to  the  case.  The  only  power  which  they  had,  or  possibly  could 
have,  was  to  put  the  next  preceding  moderator  who  was  then  pre- 
sent, in  the  chair:  and  we  have  proved  that  there  were  several 
persons  present  who  had  previously  held  that  office  in  the  General 
Assembly.  But  Mr.  Cleaveland  saw  fit  to  rise  and  say,  '  Whereas 
Dr.  Elliott  is  not  fit  any  longer  to  be  moderator,  he  must  be  put 
out;  but  I  am  fit  for  moderator,  and  therefore  I  will  assume  the 
functions  and  office  of  moderator,  and  proceed  to  organize  the  Ge- 
neral Assembly,  by  making  motions  and  putting  questions  to  the 
house  in  relation  to  those  motions.'  I  say,  gentlemen,  Mr.  Cleave- 
land had  no  right  to  do  this.  The  utmost  extent  of  lawful  power 
which  he  could  possibly  possess,  was  to  move  that  the  next  preced- 
ing moderator  present  should  take  the  moderator's  chair  and  as- 
sume the  functions  of  moderator.  But  instead  of  this,  when  he  pro- 
ceeded to  charge  the  moderator  with  misdemeanor  in  office,  and, 
in  language  carrying  all  the  imaginable  presumption  of  a  demagogue 
and  dictator,  to  constitute  himself  the  moderator,  he  was  clearly 
rebelling  against  law  and  order.  When  he  thus  said,  I  will  orga- 
nize this  General  Assembly,  he  could  not  reasonably  expect  that 
courtesy  which  he  had  denied  to  others.  He  did  constitute  himself 
the  moderator.  He  did  undertake  to  preside  at  the  organization  of 
the  General  Assembly.  And  it  is  on  that  fact  that  I  rely  in  this  de- 
fence, since  on  that  our  opponents  rest  their  claim.     I  rely  on  the 


332 

presumption  that  Mr.  Cleaveland  was  a  moderator,  and  they  must 
admit  that  he  was  de  facto  a  moderator,  or  their  argument,  based 
on  the  presumption  of  the  legality  of  his  acts,  totally  fails.  For  if 
they  sink  Cleaveland  to  a  mere  imaginary  connecting  link,  in  the 
chain  of  their  proceedings,  their  case  cannot  be  sustained.  The 
moderator  was  the  connecting  link,  the  conduit  through  which  was 
to  flow  the  power  from  the  General  Assembly  of  1837  to  the  Gene- 
ral Assembly  of  1838;  and  if  this  link  should  fail,  that  power  could 
not  issue,  as  a  clear  and  limpid  stream,  from  one  Assembly  to  the 
other.  Mr.  Cleaveland,  then,  was  a  moderator,  acting  by  a  self- 
assumed  power.  They  must  admit  that  he  was  the  connecting  link 
through  which  the  power  flowed  from  one  Assembly  to  another,  or 
abandon  their  cause,  which  turns  on  the  legality  or  illegality  of  his 
acts.  It  is  necessary  scrupulously  to  examine  this  point  of  order, 
to  discover  by  what  authority  (if  by  any  kind  of  authority)  Mr. 
Cleaveland  performed  the  functions  of  a  moderator,  because  their 
case  rests  on  it.  Unless  they  had  a  coward  for  a  moderator,  he 
would  not  refuse  to  put  a  question  relating  to  himself,  and  Dr.  El- 
liott would  not  have  refused  to  put  the  question  to  the  house,  if  Mr. 
Cleaveland  had  entrusted  him  with  it,  in  accordance  with  the  rules 
of  order  and  of  parliamentary  law.  They  admit  that  he  might 
have  put  that  very  question,  and  I  will  go  further,  and  say,  he  must 
have  put  it.  But  they  say  that  Dr.  Elliott  was  disqualified.  And 
what  is  it  to  the  purpose,  even  if  he  were  disqualified  ?  Would  that 
be  a  justification  of  Mr.  Cleaveland's  conduct?  Certainly  not.  It 
would  be  a  poor  apology,  indeed,  as  by  no  construction  of  parlia- 
mentary law  could  Mr.  Cleaveland  be  the  proper  person  to  put  the 
motion  to  the  house. 

You,  gentlemen,  might  now,  I  should  think,  tenture  to  decide 
this  point  without  further  illustration.  I  suppose  you  fully  compe- 
tent to  decide  this  plain  common  sense  question,  whether  any  per- 
son can,  in  his  own  time  and  merely  of  his  own  will,  constitute 
himself  presiding  officer,  and  exercise  all  the  functions  and  duties 
pertaining  to  the  chair,  beyond  the  control  even  of  the  house  itself? 
But  as  I  intended  to  enter  into  a  full  investigation  of  this  subject, 
I  will  now  proceed  to  an  examination  in  another  point  of  view ;  for 
you,  gentlemen,  will  find  it  necessary  to  enter  with  me  into  a  full 
examination  of  the  minuticB  of  parliamentary  law,  in  order  to  arrive 
at  an  understanding  of  this  part  of  our  defence.  It  is  the  main 
point,  the  hinge  on  which  the  whole  controversy  between  these  two 
parties  turns.  Suppose  then  that  the  moderator  were  disqualified, 
that  his  power  was  annulled,  or  had  been  rendered  nugatory,  the 
question  arises,  who  was  the  proper  person  to  put  the  question 
to  the  house?  It  might  perhaps  have  appeared  awkward  in  Dr. 
Elliott  to  put  the  question  in  relation  to  his  own  removal,  but  the 
obligation  of  duty  resting  on  him  was  rendered  the  more  impera- 
tive by  that  circumstance.  Instances  of  the  kind  have  occurred, 
and  may  occur  again. 

But,  suppose  Dr.  Elliott  had  abdicated.  Suppose  the  moderator 
was  self-annihilated,  functus  officio,  whose  duty  would  it  have 
been  to  put  the  question  to  the  house?     The  clerk's,  undoubtedly. 


333 

The  clerk  was  the  proper  person  to  put  the  question  in  that  case, 
and  it  could  not  legally  be  put  by  any  other  person  or  functionary. 
This  is  a  point  of  order,  which  is  clearly  established  by  parliamen- 
tary law.  The  British  parliamentary  law  is  very  clear  on  this 
point.  For  a  period  of  two  hundred  years,  at  least,  it  has  been  the 
uniform  practice  for  the  clerk  to  put  a  question  to  the  house,  when, 
from  any  cause  w^hatever,  the  speaker  was  disqualified,  or  when 
the  question  had  a  personal  relation  to  the  speaker  himself  Some 
may  apprehend  that  there  is  little  reason  why  such  a  rule  should 
be  universally  adopted,  yet  the  experience  of  ages  has  proved  its 
utility,  and  so  absolutely  necessary  has  it  been  found  in  a  legislative 
or  deliberative  body,  to  have  some  official  organ  by  and  through 
whom  the  questions  presented  to  the  house  may  be  propounded, 
that  the  rule  has  been  rendered  imperative.  In  cases  of  this  kind^ 
if  the  presiding  officer  refused,  it  would  therefore  become  the  duty 
of  the  clerk,  as  the  next  official  dignitary  in  the  house,  to  put  the 
question.  It  is  so  laid  down  in  Hatsell's  Precedents  of  Parliamentary 
Law.  But  it  is  not  only  John  Hatsell ;  Mr.  Jefferson  and  Mr. 
Sutherland  in  their  manuals  lay  down  the  same  rule.  2  Hatsell  158, 
G  Gray  406-408,  Jefferson's  Manual  118,  Sutherland's  Manual  104. 

I  read  from  this  big  book  (Hatsell,  vol.  2,)  as  the  learned  counsel 
appeared  to  manifest,  as  I  thought,  some  antipathy  to  little  books, 
such  as  Jefferson's  and  Sutherland's  Manuals.  The  rule  is  substan- 
tially the  same  in  all  the  authorities  to  which  I  have  referred,  there 
being  only  a  slight  variation  in  the  phraseology. 

"  When  it  becomes  necessary  to  elect  a  speaker,  and  but  one 
person  is  proposed  for  that  office,  it  has  not  been  usual  in  parlia- 
ment to  put  any  question  to  the  house;  but,  no  objection  being 
made,  without  the  question  being  formally  put,  the  members  pro- 
posing him  conduct  him  to  the  chair.  But  if  there  be  objection  or 
another  person  is  proposed,  the  question  on  the  nomination  is  put 
by  the  clerk;  and  so  also  are  questions  of  adjournment." 

That  is  the  rule,  and  it  is  a  rule  of  law  whicli  was  established  in 
the  English  parliament  more  than  two  hundred  years  ago,  and  we 
received  it  from  England,  before  we  acted  for  ourselves  independ- 
ently of  the  British  crown.  This  rule  was  introduced  into  the  co- 
lonial legislatures  whilst  we  were  mere  appendages  to  the  British 
empire,  and  this  rule  materially  influences  this  important  case  which 
mainly  turns  on  a  point  of  order. 

The  rule  was  adopted  on  the  occasion  of  the  speaker  becoming 
contumacious  and  refusing  to  obey  the  direction  of  the  house;  when 
the  house  took  up  the  subject  and  decided  two  things  at  the  same 
time.  The  one  was  "that  a  member  has  not  the  right  to  put  the 
question,  even  in  his  own  case;"  the  other,  ''that  the  clerk  of  the 
house  should  put  the  question  whenever  the  speaker  should  be  in- 
capacitated, whether  his  incapacity  should  arise  from  physical  dis- 
ability or  otherwise,"  thus  making  the  decision  a  precedent  to  all 
future  time.  Both  in  Europe  and  in  this  country  has  it  been  acted 
on,  so  scrupulously,  that  a  single  instance  of  a  departure  from  this 
rule  cannot  be  cited.  All  our  American  legislative  bodies  have, 
ex  necessitate  rei,  uniformly  adopted  this  rule.     In  all  of  them  the 


334 

clerk  puts  the  question  to  the  house  when  the  speaker  is  not  present. 
This  rule  of  parliamentary  law  is  fanniliar  to  my  friend,  Mr.  Lowrie, 
who  was  examined  before  you.  He  has  been  in  legislative  bodies, 
and  is  familiar  with  their  practices.  He  has  been  for  several  years 
secretary  of  the  senate  of  the  United  States,  and  in  his  capacity  of 
secretary,  has  frequently  put  questions  to  that  body  in  the  absence 
of  the  vice-president.  A  similar  practice  prevails  in  your  own 
state,  with  the  proceedings  of  whose  legislature  some  of  you,  per- 
haps, may  be  more  familiar  than  with  the  proceedings  of  parliament 
or  even  of  congress. 

But  snys  the  learned  and  very  ingenious  counsel,  who  in  his  ar- 
gument has  fully  sustained  the  high  reputation  which  he  has  ac- 
quired as  a  member  of  the  bar,  by  what  right  shall  the  clerk 
propound  the  question  to  the  house  ?  Shall  a  mere  inferior  officer, 
the  mere  servant  of  the  Assembly,  who  is  not  even  a  member  of  the 
body,  and  consequently  is  less  than  a  member,  exercise  that  power? 
Shall  the  clerk  who  is  the  mere  hand,  (I  mean  the  writing  hand,) 
which  wields  the  pen  of  the  body,  exercise  higher  functions  than  a 
member  of  the  Assembly  can  of  right  do?  I  would  ask  him,  and 
I  ask  you,  why  may  not  the  clerk  exercise  that  right  ?  Is  not  the 
clerk  as  dignified  a  functionary  as  any  pressed  member  on  the  floor 
of  the  house.  Here  the  argument  of  my  learned  and  very  worthy 
friend  fails  entirely.  His  argument  cannot  be  maintained.  Does 
he  intend  to  say  that  whilst  the  officer  elected  by  the  house  is  not  a 
sufficiently  dignified  person  to  put  the  question  to  thehouse,  yet,  any 
member  who  may  rise  on  the  floor  may  possess  all  the  dignity  of 
office,  and  may  propound  what  questions  he  pleases,  whether  they 
be  in  order  or  not?  The  argument  of  the  counsel  is,  (if  I  under- 
stood him,)  that  though  the  clerk  cannot  put  a  question  to  the  house, 
yet  any  one  else  may.  Will  he  pretend  to  say  that  the  clerk  is  not 
a  personage  sufficiently  dignified  to  be  allowed  to  put  a  question, 
when  it  is  expressly  provided  by  the  rules  of  the  church,  that  in 
case  of  a  certain  emergency,  the  clerk  shall  exercise  the  functions  of 
the  moderator?  In  every  stage  of  the  proceedings  in  this  case, 
they  have  ruthlessly  put  their  feet  on  the  principles  of  their  con- 
stitution. I  have  already  shown  you,  that  long  established  pre- 
cedents are  directly  against  them.  But  I  have  something  more 
forcible  than  precedent  to  oppose  to  their  proceedings.  I  have  the 
written  law;  for  the  rules  laid  down  in  the  form  of  government  of 
the  Presbyterian  Church,  are  law  in  this  case;  and  in  case  of  dif- 
ficulty it  is  provided  by  this  law,  that  the  clerk  shall  supersede  the 
members,  and  perform  the  functions  of  the  head  of  the  judicatory. 
Under  ihe  head  "of  the  presbytery,"  there  is  a  special  provision, 
that  the  stated  clerk  shall  in  some  cases  exercise  the  power  of  call- 
ing together  the  presbytery,  and  requiring  the  members  thereof  to 
convene  in  special  meeting.  Thus,  this  extraordinary  power,  the 
very  highest  power  of  the  moderator,  is  conferred  on  the  clerk 
in  such  cases.     The  rule  to  which  I  have  referred  is  as  follows : 

Form  of  Government,  page  360,  chapter  10,  section  10.  "The 
presbytery  shall  meet  on  its  own  adjournment;  and  when 
any  emergency  shall  require  a  meeting  sooner  than  the  time  to 


335 

which  it  stands  adjourned,  the  moderator,  or  in  case  of  his  absence, 
death,  or  inabihty  to  act,  the  stated  clerk,  shall,  with  the  concur- 
rence, or  at  the  request  of  two  ministers  and  two  elders,  the  elders 
being  of  different  congregations,  call  a  special  meeting.  For  this 
purpose  he  shall  send  a  circular  letter,  specifying  the  particular 
business  of  the  intended  meeting,  to  every  minister  belonging  to  the 
presbytery,  and  to  the  session  of  every  vacant  congregation,  in  due 
time  previous  to  the  meeting  ;  which  shall  not  be  less  than  ten  days. 
And  nothing  shall  be  transacted  at  such  special  meeting  besides  the 
particular  business  for  which  the  judicatory  has  been  thus  con- 
vened." 

Now,  mark,  the  reference  to  the  two  ministers  and  two  elders 
does  not  relate  to  the  clerk  merely,  but  to  both  the  moderator  and 
the  clerk  alike.  Both  are  referred  to  the  same  privy  council.  The 
power  of  the  clerk  becomes  in  this  case  exactly  the  same  as  that  of 
the  moderator.  When  the  moderator  is  out  of  the  way,  the  clerk 
supplies  his  place.  He  fills  the  vacuum,  stepping  fairly  into  the  shoes 
of  the  moderator  himself,  and  exercising  his  functions.  According 
to  the  parhamentary  law  of  England,  from  which  country  we  de- 
rived most  of  the  fundamental  principles  of  our  institutions  and  laws, 
and  also  in  our  own  country,  the  clerk  is  the  person  to  put  the  ques- 
tion in  case  of  the  absence,  inability,  or  disqualification  of  the  pre- 
siding officer.  And  I  have  shown  you  that  the  rules  governing  one 
of  the  judicatures  of  this  very  church,  confer  the  dignity  and  powers 
of  the  moderator  on  the  clerk,  in  a  case  of  paramount  importance. 
I  do  not  suppose  that  we  can  be  driven  from  this  ground.  I  cer- 
tainly cannot  think  so  from  any  thing  which  the  learned  counsel  has 
said.  We  shall  not,  by  his  denunciation  of  the  powers  of  the  clerk; 
for  the  General  Assembly  itself,  no  longer  ago  than  1835,  when 
the  moderator  was  excused  from  putting  the  question  from  motives 
of  delicacy,  decided,  as  the  parliament  of  England  had  done  long 
before,  that  the  clerk  should  put  the  question,  though  the  moderator 
was  present,  and  actually  presiding  in  the  General  Assembly  at  the 
time. 

Here,  then,  from  every  source,  we  have  the  most  conclusive  and 
satisfactory  proof,  that  in  every  deliberative  and  parliamentary  as- 
sembly in  the  world,  the  practice  in  others  being  confirmed  by  strong 
analogy  and  direct  rule  in  this  church,  together  with  the  precedent 
of  our  highest  church  judicatory,  that  when  a  presiding  otiicer,  be 
he  president,  speaker,  or  moderator,  is  disqualified  or  shall  refuse 
to  put  the  question,  or  when  he  is  absent,  the  clerk  shall  propound 
the  question  to  the  house. 

But  I  have  not  even  yet  completed  the  list  of  errors  into  which 
Mr.  Cleaveland  fell,  while  engaged  in  this  single  transaction.  His 
errors,  intentional  or  unintentional,  are  very  numerous.  In  our 
view,  every  thing  that  he  said,  or  did,  went  but  to  constitute  an  as- 
semblage of  errors.  When  he  constituted  himself  moderator,  he 
placed  himself  in  a  most  unfortunate  predicament.  Immediately 
on  his  rising  with  the  formal  "  whereas,"  he  had  to  encounter 
points  of  order,  which  strike  him  in  every  direction,  like  the  picture 
of  the  man  in  the  beginning  of  the  almanac,  wounded  in  every  vul- 


336 

nerable  part  of  his  body,  and  pierced  in  all  his  vitals  !  The  motion 
that  he  made  was  out  of  order,  and  would  of  itself  be  sufficient  for 
our  purpose.  What  was  that  motion  ?  He  rose  and  moved  that 
Dr.  Beman  should  be  moderator,  or  take  the  chair.  The  exact 
words  which  he  used  cannot  be  ascertained  with  precision,  as  the 
witnesses  do  not  precisely  agree  as  to  the  words,  though  they  are 
agreed  as  to  the  substance  of  the  motion,  and  non  tnifii  tantas 
com'ponere  lites.  At  least  four  fifths  of  the  witnesses  swear,  that  the 
words  which  Mr.  Cleaveland  used  were,  "  I  move  that  Dr.  Beman 
take  the  chair,"  or  "  be  called  to  the  chair,"  and  with  that  form  of 
the  testimony  the  whole  of  the  res  gestae  certainly  agree.  The 
witnesses  agree  that  Mr.  Cleaveland  said  that  it  had  become  ne- 
cessary to  organize  the  General  Assembly  of  1838 :  (consequently 
to  re-organize  it,  as  that  Assembly  had  already  been  partially  or- 
ganized:) he  therefore  proceeded  to  another,  a  new  and  separate 
organization,  by  appointing  a  new  moderator  and  clerks.  The  sub- 
stance, then,  if  not  the  form  of  his  motion  was,  that  Dr.  Beman 
should  take  the  chair  until  a  new  moderator  should  be  chosen. 
Accordingly  Dr.  Beman  had  no  sooner  assumed  the  imaginary 
chair  in  the  aisle,  (for  there  was  no  real  chair  in  that  place,)  than 
they  proceeded  to  elect  another  new  moderator?  Dr.  Beman  then, 
was  not  a  moderator,  but  a  mere  locum  tenens.  He  was  but  the 
chairman  of  a  preparatory  meeting,  a  meeting  preparatory  to  their 
new  and  separate  organization.  For,  if,  according  to  their  logic, 
Dr.  Beman  was  in  reality  a  moderator,  there  must  have  been  three 
different  moderators  for  the  General  Assembly,  and  all  within  the 
short  space  of  seven,  or  seven  and  a  half  minutes.  Dr.  Beman  evi- 
dently was  called  up  merely  as  sort  of  intermediary  or  internuncio, 
to  effect  a  new  organization,  and  he  merely  sat  during  an  inter- 
regnum. If  then  the  proposition  or  motion  of  Mr.  Cleaveland  was 
that  Dr.  Beman  should  take  the  chair,  (and  such  is  the  testimony 
of  a  majority  of  the  witnesses,)  it  was  in  itself  disorderly,  because, 
under  any  circumstances,  such  an  officer  as  an  intermediary  chair- 
man, is  entirely  unknown  to  the  General  Assembly  of  the  Presbyte- 
rian Church.  No  such  officer  for  any  of  their  judicatories  is  recog- 
nized by  the  constitution  of  the  church.  And  for  what  purpose  do 
they  thus  appoint  an  officer  unknown  to  the  General  Assembly? 
Why,  forsooth,  for  the  pui'pose  of  presiding  in  the  election  of  a 
moderator  for  their  deliberations.  The  question  then  was  a  disor- 
derly question,  and  it  was  propounded  in  a  disorderly  manner. 

I  come  now  to  the  consideration  of  another  little  circumstance 
in  connexion  with  these  singular  and  most  extraordinary  proceed- 
ings, the  question  in  relation  to  the  appointment  of  Dr.  Fisher  as 
moderator.  This  is  a  little  thing  I  admit,  but  when  a  case  depends 
on  little  things,  it  is  necessary  to  mention  them.  Now,  it  is  not 
material  whether  Mr.  Cleaveland  or  Dr.  Beman  first  put  the 
question  in  relation  to  the  appointment  of  a  moderator.  We 
have  fairly  placed  the  saddle  on  one  of  them,  and  they  were 
both  out  of  order  in  this  particular.  I  wish  you  to  pay  careful  at- 
tention to  this  point,  for  though  it  is  a  little  circumstance,  yet  it 
has  a  material  bearing  on  the  cause.     I  have  said  that  the  question 


337 

was  out  of  order;  and  now  I  ask,  what  question  would  have  been  in 
order.?  But  one  question  could  have  been  in  order  at  that  time, 
even  if  their  other  proceedings  had  been  orderly,  and  that  was 
"  Will  the  General  Assennbly  now  proceed  to  the  election  of  a  nno- 
derator?"  Now  nnark ;  this  question  was  never  proposed.  And 
why?  Because  it  would  have  been  voted  down  instanter,  if  it  had 
been  put  to  the  moderator,  and  by  the  moderator  to  the  house.  This 
question  was  never  put,  and  consequently  there  could  not  possibly 
be  any  tremendous  and  overwhelming  majority  in  favour  of  elect- 
ing a  new  moderator.  They  knew  that  if  they  had  put  a  motion  of 
that  kind,  we  would  have  voted  it  down  instanter.  It  was  there- 
fore that  our  opponents  shrunk  from  making  such  a  motion.  When 
they  come  here,  endeavouring  to  seize  our  patrimonial  inheritance 
by  an  intendment  of  law  in  this  court,  we  think  proper  to  show  that 
if  they  had  then  made  the  only  motion  that  could  be  legally  made, 
we  would  have  voted  it  down.  But,  whatever  may  have  been  Mr. 
Cleaveland's  motion,  whichever  form  of  the  disorder  be  fastened 
upon  him,  of  this  we  are  certain,  that  the  question  put  by  Dr.  Be- 
man  was,  that  Dr.  Fisher  be  moderator.  That  motion  was  made 
whilst  there  was  a  moderator  in  the  chair.  They  thus  dispense 
with  the  orderly  question,  and  supersede  the  presiding  officer  by 
indirection;  thus  relieving  themselves  from  all  the  awkwardness 
which  would  have  attended  their  position,  had  they  proceeded 
regularly.  It  is  very  important  that  you  should  examine  this 
point.  They  neglected  the  preliminary  question,  and  Dr.  Beman 
not  occupying  a  proper  position  for  a  moderator,  but  in  the  imagi- 
nary chair,  they  proceed  at  once  to  the  election  of  a  new  modera- 
tor! It  is  not  known  that  there  has  ever  before  been  an  instance 
of  the  election  of  a  presiding  officer  of  this  body  being  passed  bv 
yeas  and  nays  as  a  simple  motion.  A  moderator  is  not  chosen  by 
a  mere  resolution,  but  on  a  nomination.  But  I  will  show  you  that 
two  persons  were  in  nomination,  and  that  no  question  at  all  was 
ever  taken  on  the  nomination  of  one  of  them.  A  moderator  had 
been  previously  nominated,  and  it  was  therefore  a  contest  between 
these  two,  for  the  chair.  As  to  Dr.  Beman,  I  do  not  know  but  he 
had  a  question  to  read  from  printed  minutes,  as  Mr.  Cleaveland 
read  from  written  notes;  but  no  matter,  our  opponents  gravely  tell 
us  that  every  other  question  was  passed  unanimously,  while  on  this 
there  were  nays.  They  found  it  necessary  to  reverse  this  question, 
and  yet  the  learned  and  very  ingenious  counsel  himself  told  you 
that  if  but  one  person  is  put  in  nomination,  it  is  not  necessary  to 
reverse  it.  He  further  informed  you  that  when  there  is  but  one 
person  nominated  no  vote  at  all  is  necessary,  as  if  there  is  no  ob- 
jection, all  are  to  be  considered  as  acquiescing  in  the  choice.  But 
if  two  persons  are  nominated,  the  sense  of  the  house  must  be  taken 
on  each  nomination  separately  by  yeas  and  nays.  Thus  then,  the 
real  question  is  this :  there  were  three  persons.  Dr.  Elliott,  Dr.  Be- 
man, and  Dr.  Fisher,  and  one  of  these  was  to  be  chosen  extraor- 
dinary moderator,  who  was  to  act  in  a  new  and  unknown  capacity. 
The  learned  counsel  says  that  where  there  is  but  one  person  nomi- 
nated, he  may  be  chosen  without  calling  for  the  veas  and  nays. 

29 


338 

Granted:  but  where  two  persons  are  nominated,  it  is  the  practice 
for  the  clerk  to  call  the  roll,  when  each  member  votes  for  A  or  for 
B,  as  he  may  prefer.  But  here  are  three  persons  to  be  voted  for. 
What  now  is  to  be  done,  the  learned  counsel  has  not  informed  us. 
Whether  they  are  to  be  amalgamated  by  animal  magnetism,  or  by 
some  process  of  electricity,  as  bits  of  paper  when  electrified  are 
brouo-ht  into  juxta-position,  or  amalgamated  into  one  mass.  By  a 
common  rule  of  parliamentary  law,  the  motion  to  appoint  a  modera- 
tor was  a  disorderly  motion,  and  by  their  own  admission,  the  vote  on 
the  question  was  disorderly.  The  roll  of  members  should  have  been 
called,  and  the  number  of  yeas  and  nays  recorded  as  they  might  be 
given  for  A,  B,  or  C.  But  the  minutes  which  are  the  record  in  the 
case,  do  not  show  that  any  such  vote  was  taken.  They  do  not  even 
allege  that  a  vote  was  taken  on  either  of  the  nominations  by  call- 
inf^he  roll,  and  the  question  relative  to  Dr.  Elliott  was  not  put  at 
all.  But  they  contend  that  the  vote  on  the  question  of  appointing 
Dr.  Beman,  was  taken  by  yeas  and  nays,  and  that  some  nays  were 
heard  on  that  question.  They  have  not  been  able  to  produce  any 
evidence  that  nays  were  heard  on  the  other  questions.  Conse- 
quently there  is  no  proof  that  either  of  those  questions  were  by 
yeas  and  nays.  Dr.  Beman  and  Dr.  Fisher  were  chosen  modera- 
tors by  resolution,  if  they  were  chosen  at  all.  And  it  is  incompe- 
tent to  elect  a  moderator  by  resolution  as  I  have  already  shown  to 
vou  :  such  an  occurrence  as  the  election  of  a  moderator  of  the 
General  Assembly  of  the  Presbyterian  church  by  acclamation, 
was  never  heard  of  before  this.  The  record  says,  a  motion  was 
made,  the  question  was  put,  and  Dr.  Fisher  was  chosen  by  a  large 
majority.  Thus  was  he  inducted  into  office.  But  the  question  was 
not  put  on  both  sides,  and  it  is  proved  by  their  own  witnesses,  that 
no  question  was  put  on  the  appointment  of  Mr.  Cleaveland,  and  if 
Mr.  Cleaveland  were  a  moderator,  the  motion  should  have  been 
put  on  himself  But  these  motions  and  questions  were  all  out  of 
order,  as  I  have  endeavoured  to  show  to  you.  Such  motions  were 
entirely  unknown  in  the  history  of  presbyterial  proceedings. 

But  there  is  another  rule  of  order  which  must  be  taken  into  con- 
sideration here,  and  that  is,  that  an  individual  rising  in  his  place 
must  address  the  moderator.  He  must  submit  his  motion  through 
the  proper  organ  of  communication  between  the  individual  mem- 
bers and  the  body.  The  presiding  officer  is  that  organ  or  conduit. 
But  Mr.  Cleaveland  did  not  address  the  moderator.  On  the  con- 
trary, he  turned  his  face  from  him  in  an  entirely  different  direction, 
and'towards  those  persons  near  to  him  and  to  whom  he  made  his 
motion.  He  did  not  address  the  moderator  at  all,  but  he  addressed 
the  New  School  people,  and  to  them  he  put  the  question.  He  did 
not  even  face  the  Assembly  and  address  them,  but  he  voluntarily 
got  behind  their  backs  in  the  rear  of  the  whole  body,  and  while  in 
that  position  he  constituted  himself  a  moderator,  and  put  the  ques- 
tion on  his  own  motion.  Wei!,  how  was  it  with  his  successor  ?  Did 
Dr.  Beman  address  the  moderator  when  he  put  the  question  on  the 
appointment  or  election  of  Dr.  Fisher  ?  He  did  not.  Did  he  as- 
sume a  position  where  he  could  address  the  Assembly  ?     He  did 


339 

not.  He  too  was  located  in  the  rear  of  the  Assembly.  The  locality 
of  these  men  during  these  proceedings  is  somewhat  important. 
Suppose,  for  instance,  that  two  or  three  disorderly  persons  in  the 
gallery,  or  in  the  lobby,  or  in  some  nook  or  corner  of  the  house, 
should  assume  the  province  of  making  motions  and  putting  ques- 
tions to  the  house,  would  such  proceedings  be  in  order? 

The  proceedings  of  these  gentlemen  remind  me  of  the  story  of  a 
braggadocia  sort  of  a  fellow,  who,  having  been  called  to  account 
by  the  court  for  his  impudence,  boasted  that  he  had  shaken  his  fist 
at  the  judge  and  called  him  a  despot  and  a  tyrant.  "  Well,  how  did 
he  take  it?"  inquired  some  one  that  heard  him.  "Oh,  he  said 
nothing,  he  bore  it  all,"  was  his  reply.  But  being  forced  at  length 
to  give  an  explanation,  he  confessed  that  he  had  his  cloak  on,  and 
shook  his  fist  under  his  cloak,  and  said  the  judge  was  a  tyrant  be- 
low his  breath.  All  the  proceedings  of  these  New  School  gentle- 
men were  had  in  the  rear  of  the  body  of  the  Assembly.  Instead  of 
addressing  the  moderator  as  was  their  duty  by  the  rules  of  order, 
they  turned  away  from  him  and  addressed  themselves  to  their  as- 
sociates. And  they  took  a  position  where  they  could  conveniently 
communicate  with  their  own  party,  in  the  rear  of  the  house.  They 
exhibited  a  singular  spectacle  indeed. 

I  will  now  go  to  another  point  of  order  still  more  important  than 
any  that  I  have  yet  mentioned.  It  is  indeed  a  paramount  point  that 
I  now  make.  The  multiplicity  of  these  points  of  order,  and  their 
rapid  accumulation,  shows  clearly  that  when  persons  undertake  an 
act  of  this  kind,  they  necessa  lily  fall  into  gross  irregularities,  as  was 
the  case  in  regard  to  Cleaveland's  proceeding.  It  is  thus  that  some 
men  hastily  press  on  amidst  tumult  and  disorder  to  the  consum- 
mation of  the  most  atrocious  acts  of  violence.  They  cannot  at- 
tempt to  stand  on  these  proceedings.  I  am  now  about  to  mention 
a  point  of  order,  which,  if  it  be  raised  in  a  deliberative  Assembly, 
prevails  over  every  thing  else,  and  completely  rides  over  every 
other  rule  of  order.  Even  if  a  member  is  on  the  floor  in  the  midst 
of  his  speech,  only  let  this  point  of  order  be  raised,  only  let  the 
speaker  or  a  member  even  in  the  warmth  of  debate  amidst  the  tor- 
rent and  tempest  of  party  conflict,  pronounce  that  single  word 
"order,"  it  instantaneously  arrests  all  proceedings.  That  talis- 
manic  word  stills  the  tempest  of  strife,  and  all  business  is  thereby 
de  facto  laid  on  the  table  for  the  time  being.  And  no  other  business 
can  be  proceeded  with,  until  the  question  of  order  is  determined. 

Now,  when  Mr.  Cleaveland  rose  with,  all  that  gallimatia  of  a 
"whereas,"  and  so  forth,  and  so  forth,  one  half  of  which  he  read, 
whilst  the  other  half  was  spoken,  cries  of  "  order,"  "  order,"  instant- 
ly broke  forth  from  every  point  of  the  compass,  at  least  from 
every  part  of  the  house  where  they  might  have  been  expected  to 
come  from,  and  were  reiterated  by  many  members  on  the  floor.  But 
Mr.  Cleaveland  proceeded  with  his  harangue  in  spite  of  this  point 
of  order,  and  regardless  of  the  reiterated  cries  of  "order"  from  the 
members;  thus  introducing  the  precedent  for  an  anomaly  in  legis- 
lative practice,  even  that  of  the  consideration  of  two  questions  si- 
multaneously.    What  in  this  case  was  the  duty  of  the  moderator? 


:j40 

It  was  his  imperative  duty  to  call  Mr.  Cleaveland  to  order.  It  was 
his  duty  to  preserve  order  in  the  Assembly,  and  to  do  this  he  must 
enforce  the  rules  of  order.  But  what  was  then  the  duty  of  those 
who  are  endeavouring  to  enforce  their  claims  in  this  court,  on  a 
point  of  order,  it  was  their  duty,  at  the  echo  of  that  all  control- 
ling and  emphatic  word,  to  stop  all  proceedings;  to  take  their  seats 
and  await  in  silence  the  decision  of  the  house  on  the  point  of  order 
which  they  thus  raised.  The  cry  of  "order,"  no  matter  from  what 
quarter  it  came,  was  equally  efficacious.  It  should  have  brought 
them  to  a  solemn  pause,  in  order  that  the  question  of  order  might 
be  fairly  tried.  It  instantly  became  the  imperative  duty  of  the  mo- 
derator to  insist  on  this  point  of  order,  at  all  hazards,  and  to  invoke 
the  assistance  of  every  member  in  enforcing  it.  In  accordance 
with  parliamentary  law,  there  is  also  a  provision  on  this  subject  in 
the  general  rules  for  the  judicatories  of  the  church:  (it  is  rule  28, 
in  the  Appendix  to  the  Form  of  Government,)  as  follows: — 

"  If  any  member  shall  act,  in  any  respect,  in  a  disorderly  man- 
ner. It  shall  be  the  privilege  of  any  member,  and  the  duty  of  the 
moderator  to  call  him  to  order." 

In  defiance  of  the  authority  of  the  moderator,  and  in  open  viola- 
tion of  the  dignity  of  the  house  and  of  the  rights  of  every  member 
present,  Mr.  Cleaveland  persisted.  It  is  no  matter  whether  the  mo- 
derator was  right  or  not.  The  Assembly  itself  was  the  only  tribu- 
nal which  could  decide  that  question.  Mr.  Cleaveland  had  no  right 
to  decide  it  himself.  It  was  no  matter  whether  Mr.  Cleaveland 
"was  originally  in  order  or  not.  The  moment  ihe  moderator  said 
"  order,"  even  if  he  were  wrong,  until  the  question  was  decided  by 
the  house,  he  must  be  sustained,  and  Mr.  Cleaveland  was  therefore 
out  of  order,  from  that  time  forward. 

What !  are  we  to  be  told  that  the  General  Assembly  has  not 
power  to  protect  itself  from  insult,  that  it  is  utterly  powerless,  that 
when  we  were  crying  "order,  order,"  and  the  moderator,  shocked 
and  agitated  with  their  lawless  proceedings,  was  vainly  endeavour- 
ing to  arrest  the  torrent  of  disorder,  which  bore  down  all  before  it, 
are  we  to  be  told  that  we  acquiesced  in  those  disorderly  proceed- 
ings, which  were  persevered  in,  in  spite  of  our  utmost  efforts  to 
arrest  them?  Are  we  to  be  insultingly  told  that  by  an  intendment 
of  law  the  universal  cry  of  "  order,  order,"  which  burst  forth  from 
us  is  to  be  received  as  the  evidence  of  our  acquiescence  therein. 
No  man  who  regarded  the  authority  of  the  moderator,  or  the  rights 
of  the  General  Assembly,  would  vote  on  that  question.  If  he  had 
done  so,  he  would  have  been  a  partaker  in  the  disorderly  and  riot- 
ous proceedings  of  Mr.  Cleaveland  and  his  party.  They  did  not 
vote,  they  could  not.  Now  those  very  individuals  who  caused  all 
the  disorder  on  that  occasion,  are  now  endeavouring  to  force  us  by 
intendment  of  law  to  consider  a  question  as  having  been  legally  and 
properly  put  which  was  never  submitted  to  the  moderator,  but  was 
put  to  a  party  in  open  defiance  and  contempt  of  his  authority.  It 
is  not  only  enjoined  on  the  moderator  to  enforce  order  under  such 
circumstances,  but  on  the  members  of  the  Assembly  also. 

Now,  the  propriety  of  the  call  to  order  does  not  depend  on  the 


341 

fact  that  one  is  out  of  order,  but  that  the  moderator,  or  a  member, 
believes  him  to  be  out  of  order.  If  either  the  moderator  or  another 
member  consider  him  to  be  out  of  order,  the  question  whether  he 
is  really  out  of  order  or  not  must  be  settled  by  the  house.  Thus  if 
Mr.  Cleaveland  had  risen  in  order,  and  the  moderator,  armed  with 
the  insignia  of  his  office,  called  him  to  order,  he  was  bound  to  sub- 
mit to  the  call  until  the  point  of  order  was  settled.  If  he  attempted 
to  proceed  he  immediately  became  disorderly.  All  the  confusion 
that  followed  resulted  from  this  disorder  of  Mr.  Cleaveland.  The 
moderator  did  all  in  his  power  to  restore  order,  by  calling  him  to 
order  and  rapping  with  the  small  iiammer  which  had  been  put  in 
his  hand  as  the  insignia  of  his  office.  But  the  calls  to  order  were 
not  confined  to  the  moderator.  Cries  of  "order,  order,"  met  his 
ear  from  every  point  of  the  compass.  He  was  altogether  out  of 
order  from  beginning  to  end,  and  shall  they  now  be  permitted  to 
say  that  we  yielded  our  consent  by  intendment  of  law,  when  we 
were  crying  "order"  all  the  time?  We  intended  to  vote  that  it 
was  out  of  order,  and  ou7'  intendment  is  as  good  as  theirs. 

But  there  is  yet  another  point  of  order  which  was  violated  by 
these  New  School  gentlemen.  It  is  in  evidence  that  Dr.  Beman, 
Dr.  Patton,  Dr.  Fisher,  Dr.  Mason,  Mr.  Gilbert,  together  with  a 
great  many  others  were  standing  in  the  aisle,  and  on  the  seats  and 
pews  at  the  lime.  Even  the  newly  elected  moderator  of  their 
party,  who  they  say  was  undoubtedly  in  the  chair,  was  at  that  time 
standing  on  his  feet  in  the  aisle,  in  a  position  more  than  forty  feet 
from  any  chair  whatever.  At  the  same  time  it  was  that  they 
pressed  forward  towards  the  scene  of  that  most  orderly,  quiet  and 
peaceable,  and  what  if  I  say  Christian-like  organization.  They 
burst  forth  from  every  direction,  they  rushed  from  the  pews,  and 
over  the  tops  of  the  pews,  pressing  and  crowding  towards  the  scene 
of  action,  in  the  midst  of  the  crowd  which  had  congregated  near 
the  centre  of  the  house.  Now  we  have  a  rule  that  whenever  three 
or  more  than  three  members  are  standing  at  the  same  time,  the 
moderator  shall  require  them  to  sit  down,  consequently,  in  such  a 
case,  they  were  ipso  facto  out  of  order,  and  must  take  their  seats, 
excepting  the  person  who  might  be  speaking  at  the  time,  and  those 
who  refused  to  take  their  seats  in  obedience  to  the  call  of  the  mo- 
derator were  guilty  of  a  gross  infraction  of  the  rules  of  order, 
which  of  itself  fully  justified  the  Old  School  party  in  bursting  forth 
in  one  universal  shout  of  "order."  I  will  now  read  the  rule  to 
which  I  have  referred ;  it  is  the  twenty-seventh  rule,  Appendix  to 
the  Form  of  Government,  page  454. 

"When  more  than  three  members  of  the  judicatory  shall  be 
standing  at  the  same  time,  the  moderator  shall  require  all  to  take 
their  seats,  the  person  only  excepted  who  may  be  speaking." 

This  being  the  rule  of  the  General  Assembly  is  the  law  in  this 
case,  and  every  member  of  that  Assembly  had  a  right  to  demand 
that  it  should  be  enforced.  It  may  be  objected  that  the  moderator 
and  the  Old  School  party  did  not  require  them  to  take  their  seats- 
Ah  !  but  they  did  the  same  thing,  though  in  another  form  of  words. 
They  uttered  and  reiterated  the  call  to  order.     "Order,"  "order,'* 

29* 


342 

was  heard  from  every  pari  of  the  house.  When  that  cry  was  first 
heard,  it  might  have  been  asked  with  propriety,  "who  is  out  of 
order?"  And  the  answer  might  have  been,  "there  are  more  than 
three  members  standing."  In  this  case  there  were  not  only  three 
members,  for  the  whole  association  of  these  New  School  men 
rushed  together  with  one  accord.  At  least  a  majority  of  them 
were  standing  at  that  m.oment,  and  the  whole  of  them  were  out  of 
order,  and  the  moderator  was  bound  to  restore  order  or  the  busi- 
ness of  the  Assembly  could  not  be  legally  proceeded  with. 

My  remarks  in  relation  to  order,  have,  so  far,  an  application 
alike  to  all  assemblies  legally  organized,  of  whatever  profession, 
or  in  whatever  capacity  met,  whether  for  religious  or  civil  purposes, 
legislative  or  deliberative.  But  there  is  another  and  more  impor- 
tant consideration  involved  in  the  present  case,  one  of  vast  import- 
ance and  deeply  affecting  the  peace  and  welfare  of  society.  In  a 
civil  or  political  assembly  composed  of  mere  men  of  the  world,  the 
obligation  rests  on  all  the  members  to  observe  the  rules  of  order, 
an  obligation  arising  no  less  from  courtesy  and  politeness  than  from 
the  necessity  of  having  proper  order  in  the  transaction  of  business. 
On  an  assembly  of  grave  divines,  rest  special  and  additional  obli- 
gations. The  clergy  are  considered  as  being  by  their  ordination 
separated  from  the  world,  and  commissioned  to  teach  the  doctrines 
of  a  holy  religion,  which  peculiarly  inculcate  the  principles  of  peace 
and  order.  They  are,  therefore,  bound  to  set  the  example  them- 
selves. Their  business  and  habits  of  mind  should  lead  them  care- 
fully to  scrutinize  the  maxims  of  propriety,  to  cultivate  a  spirit  of 
meekness,  forbearance,  and  proper  regard  to  authority.  It  would 
be  derogatory  to  the  institutions  of  the  church  to  suppose  that  they 
had  not  added  something  of  a  graver  nature  than  the  obligations 
which  rest  on  other  assemblies,  or  than  are  exacted  from  us,  mere 
children  of  the  world.  Accordingly,  we  find  that  the  twenty-fourth 
of  the  standing  rules  for  the  government  of  the  judicatories  of 
the  Presbyterian  Church,  declared  in  these  solemn  and  hortatory 
words : 

"It  is  indispensable  that  members  of  ecclesiastical  judicatories 
maintain  great  gravity  and  dignity  while  judicially  convened;  that 
they  attend  closely  in  their  speeches,  to  the  subject  under  consider- 
ation, and  avoid  prolix  and  desultory  harangues:  and  when  they 
deviate  from  the  subject,  it  is  the  privilege  of  any  member,  and  the 
duty  of  the  moderator,  to  call  them  to  order." 

This  rule  is  to  be  found  in  the  appendix  to  the  Form  of  Govern- 
ment, page  453. 

In  addition,  therefore,  to  every  thing  known  in  other  assemblies, 
in  an  ecclesiastical  assembly  great  gravity  and  dignity  are  required 
whilst  the  members  are  convened,  whether  judicially  or  otherwise. 
Did  they  at  that  time  conform  to  this  rule  ?  Did  they  give  heed  to 
its  exhortation  1  Were  their  proceedings  in  the  midst  of  such  a 
scene  of  confusion  characterized  by  that  gravity  which  would  add 
dignity  to  their  acts  and  manifest  the  Christian  forbearance  becom- 
ing the  professed  ministers  of  God?  If  you  had  listened  to  the 
gentlemen  who   first  testified  in  this  court  you  might  have  sup- 


343 

posed  so.     But  on  the  cross-examination,  what  appeared?     Did  it 
appear  that  they  had  quietly  kept  their  seats,  and  yielded  a  ready 
obedience  lo  the  lawfully  constituted  authorities  of  the  General  As 
sembly  ?    Did  they  give  to  the  chair  even  the  attention  and  courtesy 
which  would  have  been  anticipated  in  political  or  polemical  as- 
semblies, influenced  only  by  the  exalted  obligations  of  courtesy  and 
politeness  which  belong  to  the  character  and  standing  of  gentlemen, 
irrespective  of  the  higher  claims  of  Christian  deportment?     On  the 
contrary,  what  do  we  see?     A   gentleman   rose  and   stated   that 
something  had  taken  place  which  required  that  a  new  General  As- 
sembly must   be  organized  "at  this  time,  and   in  this  place,"  that 
they  had  been  so  advised  by  counsel  learned  in  the  law.     In  a  hur- 
ried and   broken  voice,  manifesting  great  agitation,  he  reads  and 
recites,  and  not  knowing  exactly  what  he  does,  he  interlards  both 
his  reading  and  his  recitation  with  extemporaneous  remarks,  and 
as  the  confusion  increases,  with  a  trembling  hand  and  a  tremulous 
voice,  in  a  tone  scarcely  audible,  he  adds,  "  not  to  appear  discour- 
teous," "in  the  shortest  time,  and  with  the  fewest  words  possible." 
But  few  even  of  his  few  words,  only  one  now  and  then,  are  heard  ; 
but  he  moved  that  Dr.  Nathan  S.  S.  Beman  take  the  chair.     Now 
I  wish  you  to  pay  particular  attention  to  the  manner  in  which  this 
motion  was  received  by  those  New  School  men,  who  ought  to  have 
been  bowed  down  under  an  awful  sense  of  the  responsibility  resting 
on  them,  as  men  accustomed  to  exercise  the  functions  of  the  sacer- 
dotal office.     How  was  the  question  on  Mr.  Cleaveland's  motion 
received  by  them  ?     How  vf as  it  responded  to  ?     Why,  by  a  yell 
of  "aye,"  so  loud  as  to  astound   the  whole  Assembly,  and  drow^i 
the  calls  to  order.     Well  then,  in  what  manner  did  Dr.  Beman  go 
to  the  chair?     Did  he  proceed  to  take  his  station  in  a  grave  and  so- 
lemn manner?     He   rushes   from  the  pew  in  which  he  had  been 
sitting,  retreats  precipitately  some  distance  down  the  aisle,  takes 
his  station  in  the  midst  of  his  party,  turns  his  back  to  the  Assembly, 
and  acting  as  a  chairman  without  a  chair,  a  moderator  without  the; 
insignia  of  office,  he  proceeded  to  business  without  calling  the  As- 
sembly to  order,  or  constituting  with  prayer,  as  their  rules  require 
that  every  General  Assembly  shall  be  constituted.     Resolute  as  they 
were,  they  were  not  sufficiently  hardened   to  assume  the  humble 
attitude  of  prayer,  to  crave  the  blessing  of  the  God  of  peace  and 
order,  on  their  confused,  hurried  and   riotous  proceedings.     Dr. 
Beman  did  not  address  the  Divine  Majesty,  but  he  immediately 
proceeds  to  put  question  after  question  in  rapid  succession,  which 
being  seconded  by  some  of  the  party,  were  responded  to  by  thun- 
dering shouts  of  aye,  aye,  AYE,  from  those  who  were  rushing  from 
every  part  of  the  house,  or  huddled  together  in  the  aisle.     Can  any 
one  suppose  that  that  tremendous  and  thundering  aye  in  the  midst 
of  such  confusion  was  becoming  the  dignity  of  a  grave  and  solemn 
assembly  of  divines?     Only  view  them,  pushing  on  to  their  strange 
destiny,  dashing  and  foaming  in  their  ungovernable  fury    from 
aisle  to  aisle,  the   confused    noise   reverberating  with   deafening 
sounds  like  distant  thunder,  until  they  at  last  rush  through  the  open 
portals.     Then,  fearing  that  those  who  remained  in  mute  astonish 


344 

merit  at  these  unheard  of  proceedings,  not  knowing  what  was 
done,  would  be  uncertain  where  they  had  gone,  they  send  back 
a  messenger  to  announce  their  departure.  Thus  from  three  cor- 
ners ot"  the  house,  successively,  was  tiie  vociferous  proclamation 
iieard,  that  they  had  adjourned  to  Washington  Square.  Now  I 
would  ask  you,  gentlemen,  if  those  New  School  members  did  main- 
tain great  gravity  and  dignity  whilst  they  were  thus  judicially  en- 
gaged in  the  preliminaries  of  their  new  and  separate  organization? 

There  is  another  circumstance  connected  with  this  matter  which 
elicits  a  very  curious  inquiry  in  relation  to  this  part  of  the  case,  and 
ihe  consideration  of  which  may  assist  you  in  determining  whether 
ih(;se  questions  were  put  in  such  an  orderly  manner  as  to  give  an 
opportunity  to  all  the  members  to  vote.  For  even  admitting  that 
the  questions  were,  inherently,  proper  questions,  yet  if  we  had  not 
an  opportunity  to  vote  they  cannot  bind  us  by  intendment  of  law. 
It  will  become  particularly  necessary  to  examine  this  circumstance, 
if  the  jury  shall  consider  those  questions  lawful  and  orderly  within 
themselves ;  for  order  means,  in  parliamentary  phrase,  a  regular 
question,  properly  proposed  in  the  regular  succession  of  business, 
and  it  does  not  mean  anything  else.  If  the  time  occupied  by  the 
proceedings  was  not  sufficient  for  their  completion,  they  could  not 
have  been  had  in  an  orderly  manner.  In  order,  then,  to  ascertain 
what  was  the  space  of  timebetween  the  period  when  Mr.  Cleave- 
land  first  gave  utterance  to  his  "whereas,"  and  the  period  when 
the  New  School  men  in  a  body  left  the  church  in  Ranstead  court, 
it  will  be  necessary  for  you,  in  the  first  place,  to  fix  in  your  minds 
from  recollection  what  was  the  evidence  on  this  point,  of  course 
remembering  that  it  was  intended  to  be  done  in  the  shortest  time 
possible ;  and  next  inquire  whether  this  time  was  sufficient  for  those 
multifarious  transactions  to  have  transpired  decently  and  in  order. 
The  witnesses,  I  think,  have  generally  put  the  time  from  four  to 
seven  minutes,  and  they  all  agree  that  the  time  was  very  short 
indeed. 

[Mr.  Meredith. — The  Episcopalian,  the  only  one  examined,  said 
inenty  to  liventy-jive  minutes.] 

Mr.  Preston. — As  to  his  testimony  it  is  very  uncertain.  And  I 
beg  of  you  gentlemen  to  make  up  your  own  minds  as  to  the  time, 
and  having  done  so,  see  what  was  done  during  that  time.  You 
will  recollect  that,  in  the  first  place,  Mr.  Cleaveland  made  a  kind 
of  speech  or  recitation  which  occupies  ten  or  fifteen  closely  printed 
lines;  he  then  made  a  motion  that  Dr.  Beman  take  the  chair,  and  put 
and  reversed  the  question  on  that  motion  audibly  and  distinctly. 
Some  of  the  witnesses,  if  I  recollect  aright,  said  deliberately.  So 
much  for  Cleaveland,  Then  in  regard  to  Dr.  Beman's  agency. 
Dr.  Beman  having  marched  backwards  down  the  aisle  and  taken 
the  imaginary  chair,  a  motion  was  made  for  the  appointment  of 
temporary  clerks,  on  which  also,  the  question  was  deliberately  put 
in  the  affirmative  and  in  the  negative.  Then  followed  the  nomina- 
tion of  Dr.  Fisher  for  the  office  of  moderator,  with  the  question 
thereon  both  put  and  reversed,  and  next  the  appointment  of  a  stated 


345 

and  permanent  clerk,  in  a  similar  manner.  Finally,  came  a  motion 
for  adjournment,  also  put  and  reversed. 

Thus  then  there  were  no  less  than  fourteen  questions  (and  I  do 
not  know  but  there  might  have  been  eighteen  or  twenty)  put  and 
reversed,  and  the  vote  taken  audibly  and  distinctly  on  each  in  a 
period  which  is  admitted  to  have  been  very  short.  Now  I  venture 
the  assertion,  that  if  so  many  propositions  were  acted  on  in  the 
longest  time  suggested  by  any  one  of  the  witnesses,  the  historical 
records  of  the  world  do  not  furnish  a  case  of  similar  despatch  in 
business  in  any  body  governed  by  parliamentary  rules. 

Why,  gentlemen,  it  was  the  creation  of  a  world,  as  regards  the 
Presbyterian  Church.  The  creation  of  the  world  which  we  inhabit 
occupied  the  wisdom  and  power  of  the  Omnipotent  Creator  for  six 
days,  but  here  was  one  world  destroyed,  and  another  world  created, 
and  all  occupied  but  from  four  to  seven  minutes. 

I  well  know,  how  wearisome  these  minute  investigations  must  be 
to  your  honour,  as  well  as  exhausting  to  the  patience  of  the  jury, 
and  nothing  less  than  an  imperative  sense  of  duty  could  impel  me 
to  resort  to  the  alternative  of  dissecting  this  case  in  this  manner. 
It  is  necessary  that  I  should  claim  your  indulgence,  for  I  apprehend 
that  I  am  not  going  beyond  what  the  exigencies  of  this  cause  de- 
mand. I  will,  therefore,  endeavour  still  further  to  strengthen  my- 
self as  to  the  position  that  Mr.  Cleaveland  was  out  of  order,  from 
beginning  to  end,  by  showing  that  they  could  not  have  been  other- 
wise than  out  of  order,  thai  they  did  not  intend  to  be  in  order,  it 
being  their  purpose  to  organize  a  new  and  separate  body,  entirely 
distinct  from  the  General  Assembly  of  the  Presbyterian  Church,  and 
they  cannot  now  avail  themselves  of  the  advantage  of  an  intend- 
ment of  law,  for  maintaining  the  contrary.  I  will  show  that  the  gen- 
tlemen, in  point  of  truth,  have  never  considered  themselves  as  acting 
in  conjunction  with  the  General  Assembly,  either  then  or  since.  1 
undertake  to  sustain  the  bold  proposition  that  in  their  own  secret 
hearts  they  never  considered  us  as  participating  with  them,  nor 
regarded  themselves  in  reality  with  us,  but  that  they  entirely  segre- 
gated themselves  from  all  connexion  with  us.  I  have  entered  mto 
the  minutia  of  this  investigation  for  the  purpose  of  showing  that  it 
was  utterly  impossible  that  these  gentlemen  should  consider  them- 
selves as  the  rightful  inheritors  of  the  name  and  property  of  the 
Presbyterian  Church.  This,  to  some  gentlemen,  may  seem  bold 
language,  but  I  expect  to  search  the  course  of  these  men  through 
and  through,  and  to  see  their  nerves  tremble  under  the  investigation. 
I  now  propose  to  aim  a  blow  at  the  head  of  their  case,  which  must 
put  an  end  to  its  existence,  I  will  show  you  that  they  did  not  con- 
sider themselves  as  any  part  or  parcel  of  us  or  of  the  same  Assem- 
bly with  us  ;  and  the  first  witness  that  I  shall  call  in  support  of  my 
position  is  Mr.  Cleaveland  himself  What  does  he  say?  The 
paper  which  has  been  offered  in  evidence,  being  a  part  of  the  mi- 
nutes of  their  New  School  Assembly,  is  not  the  same  that  he  read 
in  Ranstead  court.  The  original  paper,  which  it  is  very  desirable 
should  meet  the  public  eye,  has  been  carefully  concealed  from  pub- 
lic view,  but  this  has  been  adopted  as  containing  the  substance  of 


346 

the  original,  and  I  wish  you  to  mark  its  language.     [See  page  260 
of  this  report,  at  top.] 

Thus,  these  New  School  men  have  thought  proper  to  give  the 
substance  only  of  that  extraordinary  paper.  We  can  neither  obtain 
the  original  nor  an  exact  copy  of  it.  Why  was  not  a  true  copy  of 
the  original  paper  that  was  submitted  to  the  General  Assembly 
recorded  on  their  minutes?  Why  the  original  cannot  be  found  is 
a  query  that  I  should  like  to  hear  satisfactorily  answered.  But  ac- 
cording to  their  statement,  the  language  of  their  organ,  Mr.  Cleave- 
Innd,  was,  "  As  ice  had  been  advised  by  counsel  learned  in  the  law." 
Who  were  the  "ire"  that  had  been  thus  advised?  Had  we,  the  Old 
School  men?  Did  ice  institute  those  extraordinary  proceedings? 
Did  Mr.  Cleaveland  mean  to  intimate  that  we,  the  Old  School 
members,  had  been  so  advised  ?  He  could  not  mean  the  Old  School 
party,  because  he  did  not  address  himself  to  them.  He  did  not 
mean  the  General  Assembly  itself,  for  he  did  not  address  the  mode- 
rator, who  was  the  presiding  officer  of  the  Assembly.  It  is  there- 
fore evident  that  he  used  the  word  "we"  as  a  designation  of 
himself  and  his  party;  thus  separating  himself  at  once  from  those 
denominated  Old  School  men,  and  whom  they  now  wish  to  make  a 
part  of  the  "  we"  by  intendment  of  law  ! 

But  to  enter  a  little  further  into  an  examination  of  that  remarka- 
ble paper.  I  find  in  it  this  language:  "He  trusted  it  would  not  be 
considered  an  act  of  discourtesy."  Discourtesy — to  whom  ?  Surely 
not  to  those  who  had  appointed  him  to  be  their  spokesman  on  that 
occasion;  but  to  us  of  the  Old  School  party.  He  meant  to  say,  and 
in  efl^ect  did  say,  "  I  trust,  gentlemen  of  the  Old  School,  that  it  will 
not  be  considered  discourteous  to  i/ou  if  we  proceed  to  organize 
ourselves  as  the  General  Assembly  of  1838."  Is  it  not  clear  that 
thai  was  what  they  intended,  even  an  organization  of  themselves 
separate  from  us?  As  to  Mr.  Cleaveland,  he  was  the  selected 
organ  of  a  body  of  men  to  which  we  did  not  arid  do  not  belong; 
and  they  appealed  to  the  courtesy  of  the  Old  School  party  not  to 
interrupt  them. 

I  will  not  so  far  implicate  these  JVew  School  gentlemen  as  to  sup- 
pose that  they  were  then  deliberately  setting  a  trap  or  pitfall  in 
which  to  catch  their  brethren  unawares,  by  a  mere  intendment  of 
law.  No,  they  did  not  at  the  time  intend  such  treachery.  But, 
supposing  that  we  had  so  far  acceded  to  their  request  as  to  agree 
to  stand  aside,  as  mere  lookers  on,  in  silence,  while  certain  acts 
were  performed,  are  they  to  be  permitted  to  come  into  this  court 
and  say,  "Gentlemen,  you  acceded  to  our  proposition  out  of  cour- 
tesy, and  remained  silent  whilst  we  performed  certain  acts  which 
we  could  not  have  performed  elsewhere;  and  we  have  since  found 
out  that  we  can  take  advantage  of  you,  and  by  a  legal  intendment 
we  can  construe  your  silence  into  an  acquiescence  with  our  acts?" 
Would  you,  gentlemen,  by  your  verdict,  sanction  such  a  gross  fraud? 
You  cannot  do  it.  Their  questions  were  clearly  put  to  themselves 
exclusively,  and  not  to  us.  The  preceding  motions  of  Dr.  Mason 
and  others  were  propounded  to  us  through  the  moderator,  but  Mr. 
Cleaveland's  motion  was  not  proposed  to  us  at  all.     He  did  not  ad- 


347 

dress  the  moderator.  His  motion  was  addressed  to  the  New  School 
party  only,  and  not  to  the  Old  School  men.  He  did  not  intend  to 
address  himself  to  us,  nor  was  he  so  understood  at  the  time. 

But  let  me  again  suppose  a  case.  Suppose  that  paper  of  Mr. 
Cleaveland  had  not  revealed  their  intentions.  Sujjpose  that  there 
had  been  a  previous  understanding  that  the  Old  School  men  should 
remain  silent  spectators  of  the  scene.  Suppose  that  understanding 
to  have  been  in  consequence  of  a  messenger  sent  by  these  New 
School  gentlemen,  for  the  purpose  of  entrapping  us,  with  a  request 
that  we  would  be  silent  whilst  they  effected  a  separate  organization 
of  their  party.  And  suppose  that  under  such  circumstances  they 
should  subsequently  tell  us  that  we  had  depended  on  a  delusion,  on 
a  false  security.  What,  gentleman,  would  that  be,  but  the  setting 
of  a  legal  steel-trap?  Such  conduct  is  not  practised  by  high-minded 
and  honest  men,  or  by  honourable  (christian  gentlemen ;  and  I  insist 
that  no  court  of  justice  would  sustain  the  fraud.  Yet  I  really  can- 
not perceive  that  this  supposable  case  is  stronger  than  the  real  one; 
that  is,  if  our  adversaries  have  really  done  what  they  now  pretend. 
What  are  the  facts  in  this  case?  Mr.  Cleaveland  rises  in  the  rear 
of  the  Assembly,  and  says,  "  We  desire  to  proceed  to  a  matter  of 
business,  and  as  it  is  of  very  great  importance  to  me  and  my  friends 
that  we  should  improve  this  present  time,  and  act  in  this  place,  1 
hope  that  we  shall  be  permitted  to  proceed  without  interruption — 
particularly  as  we  mean  nothing  discourteous."  He  was  aware 
that  he  was  placing  himself  in  a  most  extraordinary  attitude,  and 
he  therefore  urges  the  plea  of  necessity,  at  the  same  time  begging 
that  his  conduct  might  not  be  considered  discourteous.  So  forcibly 
was  Mr.  Cleaveland  struck  with  the  impropriety  of  his  conduct, 
that  he  thought  it  right  to  apologize  to  the  General  Assembly  for 
the  interruption  that  he  gave;  and  the  words  which  he  used,  most 
certainly  implied  that  he  was  asking  permission  to  proceed  with 
the  contemplated  matter  of  business. 

But  that  important  word  we  shows  'conclusively  tliat  our  oppo- 
nents did  actually  intend  a  separate  and  ex-parte  organization.  By 
that  one  word,  in  the  manner  and  connexion  in  which  it  was  used, 
the  conclusion  that  they  did  not  mean  to  include  the  Old  School 
party,  and  did  not  address  themselves  to  them,  is  completely 
clinched  and  riveted  on  these  New  School  gentlemen. 

But  I  intend  to  leave  no  room  for  any  dispute  respecting  the  part 
they  considered  themselves  as  acting  at  that  tifne.  Out  of  their 
own  mouths  they  shall  be  judged.  By  their  own  testimony  you 
shall  convict  them.  In  a  paper  which  was  issued  by  the  Assembly 
of  this  New  School  party,  after  their  separate  organization,  there  is 
a  passage  in  which  they  give  a  solemn  exposition  of  what  they  had 
done.  It  is  in  what  is  called  the  Pastoral  Letter,  which  ihey  ad- 
dressed to  the  whole  of  the  Presbyterian  churches  in  the  United 
States  of  America,  and  which  was  no  doubt  intended  as  a  full  expo- 
sition of  their  proceedings  to  all  the  Presbyterian  churches  through- 
out Christendom.  And  I  venture  to  say,  that  if  you  shall  be  satis- 
fied that  they  have  really  done  what  they  say  here,  it  is  utterly 
impossible  that  your  verdict  should  be  in  their  favour.     In  this 


348 

Pastoral  Letter  they  recognize  the  existence  of  two  distinct  parties 
in  the  Presbyterian  church,  and  mention  the  differences  which  had 
arisen  between  them,  which  differences  they  lament.  They  next 
give  a  statement  of  the  plans  and  propositions  that  had  been  made 
with  a  view  to  effect  the  restoration  of  peace.  But,  to  the  Pastoral 
Letter  itself.  [For  this  Letter,  from  which  Mr.  P.  i^ade  several 
quotations,  see  page  219  to  222  of  this  Report.]  "We  did" — "we" 
again:  and  who  are  the  "we"  that  iiad  taken  "advice  of  counsel 
learned  in  the  law?"  Had  ive  of  the  Old  School  been  so  advised, 
before  the  session  of  the  General  Assembly  of  1838?  Had  we  the 
General  Assembly,  or  we  the  Old  School  been  apprised  by  learned 
counsel  as  to  the  effect  of  an  intendment  of  law  ?  Had  we,  in  a 
meeting  for  consultation  and  prayer,  on  the  15th  day  of  May,  1838, 
sent  a  proposal  to  commissioners  to  the  General  Assembly  which 
were  met  in  another  place.  Was  that  meeting  for  consultation 
identical  with  the  General  Assembly  of  the  Presbyterian  church,  or 
can  we  by  any  trick  or  intendment  of  law  be  identified  with  it, 
either  as  the  whole  or  a  part  thereof?  Strange,  indeed!  Well, 
"  we  did"  all  this,  and  then  "  it  was  resolved  by  the  meeting,"  that 
is,  we  resolved,  "  that  should  a  portion  of  the  commissioners  to  the 
next  General  Assembly  attempt  to  organize  the  Assembly,  without 
admitting  to  their  seats,  &c.,  it  will  then  be  the  duty  of  the  commis- 
sioners present  to  organize  the  General  Assembly  of  1838,  in  all 
respects  according  to  the  constitution,"  and  so  on.  Take  notice, 
gentlemen,  "the  commissioners  present"  were  "to  organize  the 
General  Assembly  of  1838,"  if  a  certain  emergency  should  occur. 
Where  were  they  present?  In  the  General  Assembly?  No:  that 
body  had  not  yet  convened ;  but  present  in  the  "  meeting  for  con- 
sultation." They  were  the  "we"  of  the  consultative  meeting,  the 
"we"  who  "acted  under  the  advisement  of  counsel  learned  in  the 
law."  The  New  School  party  resolved,  "  that  should  a  portion  of 
the  commissioners,"  that  portion  which  were  then  in  session  "  in 
another  place,"  the  Old  School  portion,  attempt  to  do  a  certain 
thing,  in  any  other  way  than  that  which  met  their  approbation, 
then  it  would  be  the  duty  of  "  the  commissioners  present,"  thai  is, 
the  New  School,  "to  organize  the  General  Assembly  of  1838." 
Thus  this  New  School  Assembly  identify  themselves  with  a  previ- 
ously consulting  body,  who  resolved  that  they  would  organize  sepa- 
rately from  the  Old  School  commissioners,  and  then  claim  to  be  the 
General  Assembly  of  the  Presbyterian  Church  by  an  intendment  of 
law.  Such  was  the  character  of  their  resolution,  as  will  clearly 
appear  when  it  is  dissected  and  exposed  in  its  true  colours.  They 
go  on  to  say,  "By  this  answer  all  prospect  of  conciliation,  or  an 
amicable  division  of  the  church,  being  foreclosed,  we,"  the  same, 
the  identical  "we,"  "did,  after  mature  consideration  and  fervent 
prayer,  proceed,  at  a  proper  time  and  place,  to  organize,  in  a  con- 
stitutional manner,  the  General  Assembly  of  1838."  After  this, 
will  any  man,  learned  or  unlearned,  pretend  that  we  of  the  Old 
School  acted  with  them,  either  by  intendment  of  law  or  by  any 
other  intendment  whatever;  that  we  had  previously  consulted  with 
ourselves,  sent  a  messenger  with  a  communication  to  ourselves, 


349 

returned  an  answer  to  ourselves;  that  we  were  both  present  and 
absent,  there  and  "in  another  place"  at  the  same  tinrie:  and  that 
we  "  proceeded  to  organize  "  their  Assembly,  or  assented  to  their 
organization?  We  did  not  regard  the  question  on  their  separate 
organization  as  being  put  to  us  of  the  Old  School  party.  They  did 
not  so  regard  or  intend  it,  and  we  did  not  intend  it  so.  We  had 
not  the  opportunity  to  act  with  them.  It  was  wholly  an  act  of  their 
own;  an  act  relating  to  themselves  only,  and  of  course  utterly  null 
and  void  as  regards  us. 

Gentlemen  of  the  Jury:  I  am  aware  of  the  tediousness  of  the 
minute  investigations  into  which  I  am  entering.  I  am  aware,  gen- 
tlemen, that  your  patience  must  be  severely  tried,  but  I  feel  that  1 
am  performing  a  most  solemn  duty.  The  case,  as  you  are  well 
aware,  is  one  of  very  great  importance,  and,  in  consequence,  I  feel 
an  additional  obligation  resting  on  me  to  endeavour  to  clear  up 
every  thing  in  relation  to  it.  A  faithful  discharge  of  the  obligations 
imposed  on  me,  requires  that  I  should  omit  nothing  material  to  the 
issue;  because  I  do  not  stand  here  as  counsel  for  the  defendants 
merely,  but  engaged  in  defence  of  the  rights  and  privileges  of  the 
thousands  and  tens  of  thousands  of  Presbyterians  densely  scattered 
over  the  length  and  breadth  of  these  United  States.  The  aspira- 
tions now  ascending  from  a  thousand  pulpits  on  our  behalf,  awake 
me  to  a  full  sense  of  the  momentousness  of  this  most  important 
cause.  I  crave  of  you,  therefore,  not  to  suffer  your  patience  to 
become  entirely  exhausted;  and  1  trust,  however  feebly  I  may  be 
able  to  go  on  to  the  termination  of  my  argument,  I  shall  not  abuse 
your  confidence,  if  you  grant  me  the  indulgence  which  I  now  ask. 

And  may  it  please  your  Honour:  I  have  nearly  brought  to  a 
conclusion  the  examination  of  the  several  points  of  order  which  are 
involved  in  this  case;  and  it  appears  to  me  that  I  have  completely 
undermined  the  foundation  of  our  opponents,  and  effectually  demo- 
lished their  superstructure.  But,  though  I  consider  the  monster  as 
now  completely  prostrated,  beaten  to  the  ground,  yet  I  will  give 
this  hydra  one  or  two  blows  more,  lest,  perchance,  there  should 
be  life  left  in  it. 

Mr.  Cleaveland  was  out  of  order.  That  fact  is  established,  be- 
yond all  controversy.  For  before  he  rose,  a  motion,  as  appears  by 
the  testimony,  had  been  made  to  the  Assembly  through  the  mode- 
rator, for  the  appointment  of  a  Committee  of  Elections.  Now,  any 
question  raised  whilst  this  was  pending,  unless  it  had  relation  to 
the  subject  matter  of  that  motion,  was  disorderly.  The  fact  that 
that  motion  had  been  made  before  Mr.  Cleaveland  rose,  shows  that 
it  was  then  the  pending  question;  and  a  subsequent  question  which 
is  irrelevant  to  the  purposes  of  another  question  which  had  been 
antecedently  raised,  is  ipso  facto  out  of  order.  I  leave  out  of  view 
at  present  the  motions  of  the  other  gentlemen,  together  with  the 
demand  of  Mr.  Squier,  and  confine  myself  to  the  consideration  of 
Mr.  Cleaveland's  proceedings.  His  motion  was  not  connected  with 
the  pending  question,  nor  was  it  germain  to  the  determination  of 
that  question,  either  as  an  amendment  or  as  an  independent  ques- 
tion.    It  was  not  a  privileged  question,  for  the  appointment  of  a 

30 


350 

moderator  is  not  such.  Besides,  it  was  the  standing  order  of  the 
Assembly  that  the  appointment  of  a  Committee  of  Elections  should 
be  the  first  business,  and  there  is  a  parliamentary  rule  that  a  sub- 
sisting order  of  the  house  must  invariably,  in  all  cases,  take  the 
precedence  of  all  other  business.  So  completely  does  the  standing 
order  of  the  day  override  and  take  precedence  of  every  thing  else 
in  parliamentary  bodies,  that  the  moment  the  call  is  made  for  "  the 
order  of  the  day,"  all  other  business  is  suspended,  and  that  question 
is  immediately  taken  up.  It  is  a  privileged  question  which  over- 
rides all  other  privileged  questions,  and  any  member  may,  against 
the  consent  of  the  house,  force  this  question  to  be  taken  up.  That 
such  was  the  case  with  this  question  is  rendered  clear  by  a  refe- 
rence to  the  minutes  of  the  Assembly  for  1826,  page  40,  where  this 
rule  is  found : 

"The  first  act  of  the  General  Assembly,  when  thus  ready  for 
business,  (that  is  immediately  after  the  clerk  has  read  the  roll  or 
report  of  the  Committee  of  Commissions)  shall  be  the  appointment 
of  a  Committee  of  Elections,  whose  duty  it  shall  be  to  examine  all 
informal  and  unconstitutional  commissions,  and  report  on  the  same 
as  soon  as  practicable." 

By  this  standing  rule  the  first  act  of  the  Assembly,  after  the 
reading  of  the  report  of  the  Committee  of  Commissions,  is  the  ap- 
pointment of  a  Committee  of  Elections.  Now  the  execution  of 
this  rule  was  a  matter  of  course.  It  was  the  duty  of  the  moderator 
to  enforce  it,  even  if  no  motion  to  that  effect  had  been  made,  and 
any  member  was  privileged  to  call  on  the  moderator  for  its  en- 
forcement, and  the  rule  was  fundamental.  A  compliance  with  it 
was  the  first  act  which  the  General  Assembly  could  orderly  perform. 
Any  person  introducing  any  other  business,  therefore,  was  ipso  facto 
out  of  order.  In  this  case,  the  execution  of  this  fundamental  rule 
had  been  called  for ;  a  motion  had  been  made  to  that  effect,  when 
Mr.  Cleaveland  rose  and  made  a  motion  in  defiance  of  the  established 
order  of  the  General  Assembly  and  of  the  motion  for  its  execution; 
and  not  only  this,  but  after  he  was  informed  by  the  moderator  of  the 
existence  of  this  rule,  he  obstinately  persisted  in  his  course,  though 
he  knew  that  he  was  out  of  order. 

It  is  true,  that  the  moderator  did  not  enforce  this  rule  of  order, 
and  why  did  he  not  enforce  it?  Dr.  Elliott  has  told  you,  on  his 
solemn  oath,  that  he  could  not,  because  of  the  disorderly  conduct  of 
Mr.  Cleaveland,  and  his  pertinacious  persistence  in  that  disorderly 
conduct.  He  has  distinctly  informed  you  that  he  was  called  on  to 
enforce  it;  but  he  found  it  impossible  during  those  disorderly  pro- 
ceedings. And  he  has  told  you  further,  that  it  was  enforced  soon, 
or  immediately  after  Mr.  Cleaveland  and  his  disorderly  associates 
had  left  the  house. 

The  rule  to  which  I  have  adverted  is  of  the  most  general  and  com- 
mon application  of  any  rule  of  parliamentary  law  in  existence.  It 
applies  equally  to  every  deliberative  body  in  the  world.  John  Haiscll 
lays  it  down  in  these  words,  (I  read  from  vol.  ii.,  page  113.)  "In- 
deed the  doctrine  of  any  one  member  having  a  right  to  insist  upon 
any  thing  appears  to  be  absurd ;  for  another  member  may  insist 


351 

upon  the  contrary:  and,  therefore,  in  all  cases  whatever,  the  only- 
method  of  deciding  whether  any  thing  shall,  or  shall  not  be  done, 
or  how  it  shall  be  done,  must  be  by  moving  a  question  to  the  house; 
that  question  to  be  seconded,  and  proposed  from  the  chair,  and  the 
sense  of  the  house  taken  upon  it." 

This  is  the  general  doctrine  of  parliamentary  law  as  laid  down 
by  Hatsell.  The  exception,  which  is  to  my  present  purpose,  he 
gives  in  a  note  to  the  precept  just  read,  as  follows: — 

"The  only  exception  to  this  is,  when  a  member  calls  for  the  ex- 
ecution of  a  subsisting  order  of  the  house.  Here  the  matter  having 
been  already  resolved  upon,  and  ordered  by  the  house,  any  mem- 
ber has  a  right  to  insist  that  the  speaker,  or  any  other  person,  whose 
duty  it  is,  shall  carry  that  order  into  execution,  and  no  debate  or 
delay  can  be  had  upon  it ;  and  this  frequently  happens  in  the  case 
of  admitting  strangers  into  the  gallery,  the  clearing  the  lol)by  of 
footmen,  telling  the  house  when  notice  is  taken  that  forty  members 
are  not  present,  &c. ;  every  member  being  entitled  to  have  the 
orders  and  resolutions  of  the  house  carried  into  immediate  execu- 
tion ;  and  in  this  case,  the  member  does  not  properly  make  any 
motion,  but  only  takes  notice,  that  the  orders  of  the  house  are  dis- 
obeyed." 

It  is  useless  to  exhaust  your  patience  by  discussing  this  principle 
of  parliamentary  law.  You  see  that  Hatsell  introduces  it  as  an  in- 
controvertible and  established  doctrine.  However  unreasonable 
the  member  may  be  in  insisting  on  his  right,  "  the  matter  having 
been  already  resolved  upon,  and  ordered  by  the  house,"  must  be 
taken  up  when  any  member  insists  on  it,  and  that  without  "  debate 
or  delay." 

If  the  house  does  not  choose  to  conform  to  this  rule,  it  can  get 
clear  of  the  difficulty  in  but  one  possible  way;  and  that  is,  by  re- 
pealing or  suspending  the  order.  And  that  can  only  be  done  by  a 
deliberate  and  solemn  vote  of  the  house,  two-thirds,  or  whatever 
established  proportion,  of  the  members  voting  in  favour  of  such  a 
repeal  or  suspension.  Until  it  is  repealed  the  rule  is  the  law  oi"  the 
house,  and  any  member  may  compel  its  execution.  Thus,  in  illus- 
tration of  this  point;  if  the  Senate  of  the  United  States,  or  any  other 
parliamentary  body,  (the  General  Assembly  of  the  Presbyterian 
Church,  for  instance)  has  decided  that  a  particular  question  (the 
appointment  of  a  Committee  of  Elections,  or  any  other)  shall  be  the 
order  of  the  day  at  12  o'clock  on  a  particular  day,  when  the  ham- 
mer of  the  clock  strikes  the  bell,  announcing  the  hour  of  noon,  the 
order  of  the  day  must  be  taken  up,  and  all  other  business  must  be  in- 
stantly suspended.  A  member  in  the  midst  of  his  speech,  yea,  even 
in  the  midst  of  a  half  uttered  sentence,  or  word,  is  instantly  arrested. 
The  voice  of  that  inanimate  instrument  is  sufficient  to  arrest  the 
tongue  of  the  eloquent  orator,  and  if  he  should  fail  to  pause  at  the 
first  reverberation  of  its  sound,  at  that  juncture,  he  would  be  called 
to  order,  and  that  instantly.  However  the  house  might  prefer  to 
listen  to  an  interesting  speech,  unless  the  order  is  solemnly  repealed, 
any  one  member  may  compel  all  the  rest  to  a  compliance  with  his 
wishes  to  proceed  to  the  order  of  the  day.     This  is  the  only  alter- 


352 

native  to  avoid  leaving  imj)ortant  business  to  be  attended  to  or  not, 
according  to  whim  or  caprice.  By  this  fundamental  rule  of  order 
then,  no  other  business  could  be  brought  before  the  Assembly  until  the 
appointment  of  the  (Committee  of  Elections  was  disposed  of  Even 
if  other  business  could  have  been  previously  brought  before  the  house, 
in  an  orderly  manner,  its  suspension  must  instantly  take  place  when 
that  order  was  called  for.  It  is,  therefore,  perfectly  a  matter  of  in- 
difierence,  whether  the  call  for  the  appointment  of  a  Committee  of 
Elections  was  made  before  or  after  the  paper  of  these  gentlemen 
was  read,  or  ihe  motiot-t  of  Mr.  Cleaveland  made,  as  that  call  was 
in  order  at  any  time;  and  not  merely  that,  for  it  completely  rode 
over  all  other  questions,  and  put  them  out  of  order  the  moment  it 
was  made.  It  completely  crushed  every  thing  else,  and  more  es- 
pecially Mr.  Cleaveland's  proposition.  Pending  the  decision  of  this 
question,  no  man  had  a  right  to  propose  another  question.  Nay, 
even  the  moderator  himself  could  not  put  another  question  to  the 
house:  even  if  another  were  proposed,  the  members  of  the  house 
were  not  compelled  to  pay  attention  to  it,  or  bound  to  vote  for  or 
against  it. 

Yet  during  the  pendency  of  the  question  on  the  appointment  of  a 
Committee  of  Elections,  Mr.  Cleaveland  and  his  associates  proposed 
at  least  half  a  dozen  other  questions,  and,  if  we  credit  their  asser- 
tions, they  took  the  sense  of  the  house  on  each  one  of  them.  The 
moderator  swears  that  a  motion  for  the  appointment  of  a  Commit- 
tee of  Elections  had  been  made,  and  he  had  a  right  to  know  that 
fact.  There  could  not  be  an  intendment  of  l;i\v  in  this  case.  I 
will  maintain  it,  there  can  be  no  legal  intenciiiitjiit  without  the 
question  being  in  possession  of  the  whole  house,  which  Mr.  Cleave- 
land's question,  and  those  which  followed,  obviously  could  not  ie, 
in  this  case.  Even  if  the  whole  house  had  entertained  those  ques- 
tions and  voted  on  them,  it  would  have  been  of  no  avail.  The 
moderator  was  opposed  to  them  and  their  proceedings,  and  in  the 
rightful  discharge  of  his  legitimate  functions,  was  endeavouring  to 
maintain  the  existing  rules  of  the  Assembly,  and  striving  with  all 
his  might  for  the  restoration  of  order.  The  moderator  then  would 
have  been  right,  and  the  whole  house  wrong.  I  raise  this  point  of 
order,  and  I  put  it  on  these  three  grounds,  that  it  is  sustained  by  a 
standing  rule  of  the  General  Assembly,  by  the  universal  practice  of 
parliamentary  bodies,  and  by  the  high  authority  of  old  John  Hat- 
sell,  whom  I  have  before  quoted. 

I  now  dismiss  Mr.  Cleaveland,  and  proceed  to  show  that  all 
these  gentlemen  were  out  of  order.  This  I  propose  to  establish  in 
such  a  manner  as  I  think  will  effectually  turn  these  gentlemen,  all 
of  them,  out  of  court. 

The  unauthorized,  individual  interference  of  Mr.  Cleaveland,  was 
in  several  particulars  altogether  disorderly.  Unless  greatly  de- 
ceived, I  have  shown  this  to  your  full  satisfaction.  Now,  he  made 
his  motion  on  the  alleged  ground  that  the  constitutional  officers  of 
the  General  Assembly  had  refused  to  do  their  duty.  The  three 
gentlemen.  Dr.  Patton,  Dr.  Mason,  and  Mr.  Squier,  had  each  of 
them  offered  a  resolution,  prior   to  the  complete  organization  of 


353 

the  General  Assembly,  and  because  the  moderator  declared  those 
resolutions  to  be  out  of  order  at  that  time,  it  is  now  alleged  that 
the  officers  were  removed  for  refusing  to  entertain  those  resolu- 
tions. Thus,  according  to  their  statement,  they  proceeded  to 
organize  the  General  Assembly  because  Dr.  Elliott,  the  moderator, 
had  declared  that  certain  motions  were  out  of  order  until  the  com- 
plete organization  of  the  General  Assembly  should  be  effected. 
IVow,  gentlemen,  what  do  you  think  of  their  process  of  cornplelino- 
the  organization  of  the  Assembly,  prior  to  the  reception  of  those 
motions,  and  the  passage  of  the  questions  consequent  thereon  1 
They  say  that  they  dissolved  our  Assembly  because  we  refused  to 
perform  a  certain  thing  which  they  deemed  essential  to  the  exist- 
ence of  the  General  Assembly;  and  yet  they  themselves  after- 
wards neglected  to  do  that  very  act,  the  non-performance  of  which 
they  so  pointedly  condemn  in  us.  After  they  had  chosen  Dr.  Be- 
man  as  chairman  in  the  room  of  Dr.  Elliott,  they  proceeded  to 
elect  a  moderator  and  clerks,  and  then  adjourned  to  another  place, 
and  there  those  resolutions  were  again  presented,  put  and  carried. 
They  however  fully  completed  the  organization  of  their  Assembly 
before  the  said  resolutions  were  offered  to  it,  much  less  passed. 
JVe  could  not  organize  the  Assembly  before  receiving  certain  reso- 
lutions, and  yet  they  could  organize  an  Assembly  before  the  recep- 
tion of  the  very  same.  Ah  !  but  we  could  not  do  it  constitutionally 
because  we  had  excluded  or  refused  to  admit  certain  persons;  yet 
they  could,  and  did  organize  themselves  without  admitting  those 
very  persons.  They  admitted  them  afterwards;  and  so  might  we 
have  done,  and  there  is  no  evidence  that  we  would  not. 

But  if  the  refusal  to  admit  those  persons  was  the  ground  of  their 
proceedings,  why  was  Mr.  Cleaveland  selected  to  make  the  motion? 
Why  did  not  Dr.  Mason  make  the  motion?  If  any  one  of  them 
had  any  right  to  complain  of  the  moderator  or  to  make  a  motion 
for  his  removal,  it  was  Dr.  Mason,  and  not  Mr.  Cleaveland.  If 
Dr.  Mason  were  dissatisfied,  he  should  have  said,  the  moderator 
has  refused  to  entertain  my  motion  and  appeal,  and  I  move  that  he 
be  deposed,  or  removed  from  office.  Well,  whatever  was  their 
real  ground,  they  proceeded  to  the  organization,  and  having  de- 
clared their  Assembly  completely  organized,  they  then  adjourned  to 
the  Presbyterian  church  on  Washington  Square,  and  t/iei-e  the  reso- 
lution of  Dr.  Patton  was  again  offered,  and  was  adopted.  I  will 
now  read  their  own  version  of  their  proceedings  from  the  New 
School  minutes.  *'  The  moderator  then  audibly  announced  that  the 
General  Assembly  was  so  adjourned,  and  gave  notice,  that  any 
commissioners  who  had  not  presented  their  commissions  should  do 
so  at  the  First  Presbyterian  church." 

They  give  us  further  information  of  what  were  their  proceedings 
after  they  had  re-assembled  in  the  First  church.  They  say:  "  The 
Assembly  being  again  met  at  the  lecture  room  of  the  First  Presby- 
terian church,  Dr.  Patton  again  offered  his  preamble  and  resolu- 
tions as  follows,  which  were  unanimously  adopted." 

And  yet  our  moderator  and  clerks  were  turned  out  of  office,  and 
the  General  Assembly  resolved  into  its  original  elements,  and  then 

30* 


354 

by  then)  re-organize(J  from  those  elements,  because  they  had  not 
received  the  said  motions  previous  to  the  election  of  a  moderator; 
the  very  same  thing  that  v^^as  done  by  these  New  School  men  im- 
mediately afterwards.  They  passed  those  resolutions  for  the  first 
lime  after  their  "  being  again  met  at  the  lecture  room  of  the  First 
Presbyterian  church."  And  there,  for  the  first  time,  are  the  com- 
missioners from  the  four  excinded  synods  admitted  to  their  seats. 
Though  these  gentlemen  have  so  loudly  complained  of  our  modera- 
tor and  clerks,  for  not  admitting  those  delegates  previously  to  the 
house  being  organized;  yet  so  fully  do  they  recognize  the  propri- 
ety of  our  course  in  that  respect,  that  they  act  precisely  in  the 
same  manner.  For  though  those  delegates  from  presbyteries  with- 
in the  bounds  of  the  excinded  synods,  voted  on  the  questions  which 
were  severally  put  by  Mr.  Cleaveland,  Dr.  Beman,  and  Dr.  Fisher, 
yet  after  every  one  of  those  questions  had  been  finally  determined, 
the  resolution  was  first  adopted,  that  those  delegates  should  be 
allowed  to  vote. 

This  proceeding  of  these  New  School  men  reminds  me  of  the 
story  of  the  Satyr  in  some  of  the  Arabian  Tales,  which  blew  hot 
and  cold  with  the  same  breath.  Every  one  must  be  struck  with 
horror  at  the  monstrosity.  By  adopting  these  resolutions  of  Dr. 
Patton's,  they  in  eflect  admit  the  validity  of  the  proceedings  of 
1837,  in  so  far  at  least  that  they  precluded  the  admission  of  these 
members  in  1838,  till  the  Assembly  should  be  fully  organized.  Thus 
these  gentlemen  sanctioned,  by  a  "unanimous"  vote  of  their  house, 
all  that  we  had  proposed  from  the  beginning. 

Yes,  may  it  please  your  Honour,  they  censure  our  moderator 
depose  him,  and  divest  him  of  his  official  dignity ;  and  they  turn  out 
our  clerks  neck  and  heels,  for  the  very  act  which,  immediateh 
after,  they  fully  sanction  by  their  own  unanimous  vote. 

The  last  of  Dr.  Patton's  series  of  resolutions  requires  the  clerks, 
of  course  the  new  clerks  of  their  newly  organized  Assembly,  "to 
form  the  roll,  by  including  therein  the  names  of  all  commissioners 
from  presbyteries  belonging  to  the  Presbyterian  Church,  not  omit- 
ting the  commissioners  from  the  several  presbyteries  within  the 
bounds  of  the  Synods  of  Utica,  Geneva,  Genessee,  and  the  Western 
Reserve."  In  virtue  of  this  adoption  of  the  resolution  just  read, 
those  delegates  came  in,  for  the  first  time,  after  the  extraordinary 
anomaly  had  been  exhibited  of  their  voting  on  the  question  of  their 
own  admittance.  By  their  own  admission  they  were  out,  and  voted 
on  that  and  other  questions  before  they  came  in.  Such  were  the  shifts 
to  which  our  opponents  were  driven,  and  such  are  the  difficulties  in 
which  they  have  involved  themselves.  There  is  a  tissue  of  blun- 
ders interwoven  throughout  the  whole  of  their  proceedings.  Men 
always  entangle  themselves  in  difliculties  when  they  attempt  mea- 
sures of  this  kind,  as  the  spider  is  sometimes  entangled  in  his  own 
"web,  which  he  has  interwoven  with  so  much  ingenuity  and  care 
for  the  purpose  of  entrapping  the  unwary  fly. 

"  A  tangled  web  like  that  which  spiders  weave. 
Men  form,  when  thus  they  practise  to  deceive." 


355 

Thus,  then,  these  gentlemen  have  been  caught  in  their  own  trap. 
They  have  violated  their  own  rule.  They  have  undernnined  their 
own  foundation.  They  have  subverted  their  own  principles.  They 
turn  out  our  officers  for  not  doing  what  they  would  not  give  them 
an  opportunity  of  doing  in  the  only  way  in  which,  according  to 
their  ow^n  acts,  it  could  be  done. 

I  will  now  leave  the  consideration  of  those  proceedings  which 
were  consequent  on  Mr.  Cleaveland's  motion  with  you,  gentlemen 
of  the  jury,  and  proceed  to  another  point  in  the  cause.  I  will  now 
take  a  more  general  and  comprehensive  view  of  the  proceedings  in 
organizing  the  General  Assembly  of  1838.  I  have  not  yet  occupied 
as  much  of  your  time  and  attention  as  was  consumed  by  my  learn- 
ed friend  with  his  exordium,  and  I  will  not  take  up  much  time  in 
the  consideration  of  the  proceedings  of  1837.  I  suppose,  however, 
that  in  my  effort  to  lay  before  you  the  facts  only  of  this  impor- 
tant case,  I  shall  probably  consume  as  much  time  with  the  sub- 
stance as  he  did  with  the  shadow.  The  first  remark  which 
I  will  make  in  relation  to  the  organization  of  1838,  is  this: 
If  the  acts  of  1837  were  valid  and  legal,  then,  in  any  point  of 
view,  the  organization  in  1838  by  the  Old  School  party  was  in  all 
respects  a  correct  and  constitutional  organization  of  the  General 
Assetnbly  of  the  Presbyterian  Church.  And  further,  you  may 
make  those  proceedings  of  1837  as  incorrect,  unconstitutional  and 
illegal  as  you  please,  and  it  will  not  affect  the  validity  and  consti- 
tutionality of  our  proceedings  in  the  organization  of  the  General 
Assembly  of  1838.  Those  proceedings  in  1838  were  on  their  own 
ground  correct  and  constitutional,  and  can  be  vindicated  in  a  court 
of  law,  either  with  or  without  reference  to  the  acts  of  the  Assembly 
of  1837.  The  General  Assembly  of  1838  was  de  facto  a  new  As- 
sembly, wholly  independent  not  only  of  the  General  Assembly  of 
1837,  but  of  all  former  General  Assemblies.  And  the  proceedings 
in  1838  were  wholly  independent  of  those  in  1837.  There  is  no 
necessary  connexion  whatever  between  the  two,  except  as  the 
Assembly  in  1837  provides  the  elements  to  effect  the  organization 
of  that  in  1838;  and  the  acts  of  the  General  Assembly  of  1838 
were  substantially  correct  within  themselves.  Now  it  is  not  denied 
that  by  certain  resolutions  of  the  General  Assembly  of  1837,  the 
names  of  the  commissioners  from  four  synods  were  stricken  from 
the  roll  of  members.  They  were  stricken  from  the  roll  because  it 
had  been  satisfactorily  ascertained  that  they  had  not  been  elected 
by  a  proper  constituency;  and  that  Assembly  at  the  same  time,  by 
a  solemn  act,  decided  that  they  should  not  be  considered  a  part  of 
the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America.  Here  two  questions  naturally  arise,  and  it  is 
necessary  that  w'e  should  carefully  distinguish  between  them.  The 
first  question  is.  Were  the  acts  of  exclusion  legal  and  valid?  The 
second  is,  If  those  acts  were  invalid,  what  then  was  the  duty  of  the 
clerks,  and  of  the  moderator  who  presided  over  the  General  As- 
sembly at  its  organization  in  1838?  I  propose  now  to  examine 
both  of  these  questions  thus  presented  to  you,  commencing  with  the 
latter. 


356 

Supposing,  then,  that  those  acts  of  exclusion  were  invalid,  uncon- 
stitutional, null  and  void,  as  our  opponents  assert;  that  the  Assembly 
of  lSo7  had  no  right  to  exclude  the  commissioners  from  those 
synods,  nor  to  declare  those  bodies  out  of  the  connexion  of  the 
Presbyterian  Church ;  what  then  was  the  duty  of  the  moderator 
and  the  clerks,  who  were  the  elements  of  the  General  Assembly, 
the  only  elements  which  had  survived  the  dissolution  of  the  Assem- 
bly of  i837?  Now  an  inquiry  arises,  Who  and  what  is  the  mode- 
rator? He  is  the  executive  organ  of  the  General  Assembly.  It  is 
necessary  to  an  understanding  of  this  case  that  you  should  fully 
comprehend  the  exact  nature  of  the  moderator's  office.  In  the 
book  which  contains  "  The  Constitution  and  Form  of  Government 
of  the  Presbyterian  Church,"  cap.  19th,  his  duties  are  prescribed 
and  his  authority  defined  as  follows:  I  will  read  the  rule.  [See  this 
Report,  page  262.]  You  will  perceive,  gentlemen,  that  by  this  con- 
stitutional law  of  the  General  Assembly,  the  moderator  is  made  the 
general  depositary  of  the  power  inherent  in  the  whole  Assembly,  for 
the  purpose  of  executing  the  rules  of  order  in  effecting  the  organization 
of  the  body.  He  must  therefore  preside  and  preserve  order,  till  the 
next  moderator  is  chosen,  being,  as  he  is  for  this  purpose,  the  organ 
of  the  house,  and  the  only  medium  of  communication  between  the 
individual  members  and  the  house  itself.  There  is  no  discretion 
vested  in  him  to  judge  of  the  propriety  or  impropriety  of  any  law 
which  may  have  been  enacted,  or  of  the  constitutionality  or  uncon- 
stitutionality of  any  thing  which  may  have  been  determined  by  the 
Assembly.  And  so  it  is  with  all  executive  officers.  Their  business 
is  simply  to  execute  the  laws.  An  executive  officer  cannot  say, 
"The  law  is  unconstitutional:  ergo,  I  will  not  carry  it  into  execu- 
tion." Though  it  be  in  his  private  judgment  unconstitutional,  the 
law  enacted  by  the  competent  authority  is  in  full  force,  and  cannot 
be  repealed  or  nullified  b}'-  a  mere  executive  officer.  That  must  be 
left  to  the  law-making  power. 

Now,  let  us  apply  these  well  established  principles  to  those  who 
were  the  executive  and  presiding  officers  of  the  General  Assembly 
at  the  organization  of  that  body  in  1838.  Clearly  they  must  do 
this  in  obedience  to  the  requisitions  of  the  existing  laws  of  the 
General  Assembly.  On  proceeding  to  the  fulfilment  of  their  trust, 
they  find  recorded  in  the  minutes  of  a  former  year,  an  act  of  that 
body,  unrepealed  and  in  full  force,  requiring  them  to  exclude  per- 
sons of  a  certain  description  from  the  roll.  What  are  they  to  do? 
The  answer  is  plain.  They  are  to  execute  the  law.  The  only  body 
that  can  repeal  an  existing  law  is  that  in  which  the  legislative 
power  is  vested.  And  the  judiciary  is  the  only  tribunal  which  is 
competent  to  declare  a  law  unconstitutional.  Admit  then  that  the 
acts  of  the  General  Assembly  of  1837  were  unconstitutional  and 
unjust,  I  would  ask  you,  were  the  moderator  and  the  clerks  so  to 
pronounce  them  ?  What  would  we  think  of  mere  executive  officers 
who  should  say,  "  We  will  do  our  duty  in  accordance  with  our  own 
opinions  of  right  and  wrong;  we  will  take  the  responsibility,  and 
administer  the  laws  as  we  understand  the  constitution?"  I  hold 
that  they  were  bound  to  execute  the  order  of  the  Assembly,  even 


357 

though  persuaded  that  it  was  unconstitutional.  If  that  were  the 
case,  they  took  the  only  legitimate  course.  They  expressly  said, 
"  We  are  bound  by  the  law  so  long  as  it  rennains  unrepealed."  And 
when  it  was  urged  on  them  that  they  should  enrol  the  excluded 
commissioners,  they  inform  those  commissioners  that  their  rights 
must  be  adjudged  by  the  General  Assembly,  and  that  they  had  no 
discretion  in  the  case.  Had  they  acted  otherwise,  they  must  have 
perpetrated  a  most  preposterous  act,  transcending  their  powers,  and 
assuming  that  they  could  repeal  a  solemn  act  of  the  General  As- 
sembly. That  would  have  been  "taking  the  responsibility"  with  a 
vengeance.  The  General  Assembly  only  could  repeal  that  act,  and 
did  repeal  it,  if  the  relators  in  this  case  are  the  General  Assembly. 
If  they  are  to  be  believed,  they  finally  determined  the  question,  with 
the  full  knowledge  that  the  clerks  could  not  so  determine  it.  By  a 
5olemn  and  formal  vote  of  the  house,  they  repealed  those  very  en- 
actments which  they  now  say  were  so  utterly  unconstitutional,  null 
and  void,  from  the  time  of  their  enactment  in  1837,  that  Mr.  Krebs 
and  Dr.  M'Dowell  should  have  disregarded  them  entirely,  or  that 
they  should  have  repealed  them  on  their  own  responsibility  and  by 
their  own  authority,  independently  of  the  General  Assembly.  But 
these  executive  officers  acted  at  the  commencement  of  the  new 
Assembly  merely  by  virtue  of  their  appointment  in  the  last  Assem- 
bly. The  General  Assembly  of  1838  was  in  some  sort  propagated- 
from  them,  as  the  germ  which  had  been  provided  for  its  organiza- 
tion by  the  General  Assembly  of  1837.  They  were  the  connecting 
link  between  the  old  Assembly  and  the  new.  It  has  been  stated  to 
you  that  they  were  acting  in  obedience  to  pledges  which  had  been 
exacted  of  them.  Now,  whether  this  allegation  be  true  or  false  is 
not  very  material,  as  it  is  irrelevant  to  the  case  at  issue.  But  it  is 
not  true  in  point  of  fact,  nor  is  it  true  by  legal  intendment,  because 
the  clerks  obviously  did  not  intend  to  pledge  themselves.  The 
"whole  difficulty  here  is  in  the  manner  of  using  many  ambiguous 
words  and  phrases  in  the  English  language,  by  which  men  are  oft- 
times  enabled  to  "  keep  the  word  of  promise  to  the  ear,"  whilst 
they  "break  it  to  the  hope."  I  deny  that  there  was  any  pledge 
given.  The  clerks  refused  to  give  any  pledge  when  it  was  exacted. 
Those  officers,  when  the  resolution  was  offered  requiring  a  pledge 
of  them,  replied,  "I  will  give  no  pledge,  but  I  think  it  right  to  tell 
you  what  I  consider  to  be  my  duty."  If  these  were  not  the  exact 
words,  the  declaration  was  the  same  in  substance.  Of  their  own 
accord,  they  declared  what  they  would  do;  a  very  different  thing 
from  what  the  other  side  charge  them  with.  Besides,  no  pledge 
ever  was  required  of  the  clerks.  The  Assembly  did  not  agree  to 
Mr.  Ewing's  resolution.  He  offered  that  resolution  of  his  own 
accord,  and  when  he  found  that  the  clerks  refused  to  give  a  pledge, 
(though  they  declared  their  intentions,)  he  withdrew  it  of  his  own 
accord.  So,  their  rejection  of  those  commissioners  was  not  a  con- 
sequence of  Mr.  Ewing's  resolution,  nor  of  a  pledge  from  the 
clerks,  but  it  was  the  result  of  their  own  conviction  of  dut\^  They 
acted  voluntarily,  and  therefore  independently  of  the  General  As- 


358 

sembly  of  1837,  except  that  they  relied  on  the  acts  of  that  former 
Assembly  as  authority. 

Now,  gentlemen,  even  admitting  those  acts  of  1837  to  be  uncon- 
stitutional, they  are  the  law,  and  an  unconstitutional  law  must  be 
executed  or  einforced  whilst  it  is  law.  That  unconstitutional  law 
can  be  got  clear  of  only  by  legislative  or  judicial  authority.  The 
clerks  were  bound  by  the  law,  and  it  was  their  indispensable  duty 
to  aid  in  carrying  it  into  effect.  It  was  competent  for  the  General 
Assembly  of  1838,  to  repeal  the  law  which  had  been  enacted  by 
the  General  Assembly  of  1837.  The  clerks,  therefore,  were  right 
in  referring  the  whole  matter  to  the  house  for  its  decision.  They 
could  not  have  been  right,  had  they  acted  otherwise  than  they  did. 
They  only  fulfilled  their  duly  in  accordance  with  the  law,  as  I  have 
adduced  sufficient  authority  to  show.  It  was  the  duty  of  the  clerks 
first  to  decide  whether  a  commissioner  is  entitled  to  his  seat  in  the 
Assembly,  and  in  this  case  they  decided  by  saying,  "We  will  not 
admit  the  party  to  the  roll."  Who  then  shall  admit  them?  Why, 
the  house;  because  the  house,  and  the  house  only,  has  power  to 
admit  them,  by  a  repeal  of  the  law.  And  what  is  the  house?  Is 
it  every  body  who  may  chance  to  be  within  the  walls  of  the  build- 
ing? The  house  undoubtedly  is  composed  of  those  persons  whose 
right  to  seats  was  not  contested.  The  inquiry  then  arises,  when 
.can  the  house  admit  one  who  is  disputed?  Can  it  do  so  before  or 
after  its  organization?  It  is  self-evident  that  the  organization  must 
be  completed  before  the  delegates  can  compose  a  house  capable  of 
transacting  business.  In  the  present  case,  the  clerks  having  rejected 
certain  persons  who  claimed  to  be  commissioners  duly  elected,  it 
became  necessary  to  inquire  how  those  commissioners  came  there. 
To  make  this  inquiry,  the  rules  of  order  provide  for  a  Committee 
of  Elections  to  be  appointed  by  those  commissioners  whom  the 
clerks  had  admitted.  This  proceeding  is  made  absolute  by  a  stand- 
ing rule  of  the  body.  The  reasons  which  influenced  the  judgment 
of  the  clerks  in  their  decision  are  not  open  to  inquiry.  With  those 
reasons  we  cannot  meddle  unless  you  make  a  civil  court  to  enter- 
tain an  appeal  from  the  decision  of  an  ecclesiastical  tribunal  in  re- 
lation to  a  matter  which  is  unquestionably  within  the  jurisdiction  of 
such  ecclesiastical  body.  May  God  in  his  wisdom  forbid  that  this, 
or  any  other  civil  court,  should  ever  maintain  so  monstrous  a  doc- 
trine. No  matter  whether  the  decision  was  right  or  wrong,  it  is 
not  a  question  for  this  court  to  determine.  A  civil  court  cannot 
have  jurisdiction  in  the  case.  Otherwise  you  produce  the  anoma- 
lous and  monstrous  result  of  amalgamating  the  church  and  state, 
and  put  it  in  the  power  of  the  civil  magistrate  to  decide  questions 
of  conscience;  a  monstrous  result  indeed,  and  one  to  which  none 
of  us  would  be  willing  to  submit.  Until,  then,  the  question  of  the 
disputed  commissions  was  referred  to  the  Committee  of  Elections, 
and  they  had  reported,  the  direct  question  on  the  admission  of  those 
members  cotdd  not  be  brought  before  the  house.  That  was  the 
way  to  brmg  the  question  before  the  house.  That  course  was  open 
to  these  gentlemen.  Or  they  could  then  have  moved  the  repeal  of 
the  acts  of  1837.     This  course  was  open  to  them,  and  they  knew 


359 

it.  They  knew  too,  that  if  the  General  Assembly  of  1838  should  de- 
cide against  them,  if  that  body  should  by  a  solemn  vote  determine 
to  abide  by  the  decision  of  the  General  Assembly  of  1837,  then  the 
very  questions  which  they  are  now  so  very  desirous  to  present 
might  have  been  raised.  Why  then  did  they  not  pursue  this  course? 
The  reason  is  evident.  If  they  had  done  this,  they  would  have  ma- 
nifested their  submission  to  the  law,  and  afforded  an  opportunity 
for  the  question  to  be  fairly  met  and  decided  by  those  commission- 
ers who  had  been  admitted  because  their  seats  were  undisputed. 
But  this  was  the  last  thing  which  they  intended  to  do.  How  ab- 
surd is  any  other  course,  is  obvious  from  the  fact  that  it  would 
involve  the  anomaly  of  individuals  voting  on  the  question  of  their 
own  admission  to  a  seat.  But  as  to  the  time  when  this  proceeding 
might  have  occurred,  though  it  is  not  materia],  yet  I  will  put  myself 
on  this  ground  also. 

Before  the  report  of  the  Committee  of  Elections  the  Assembly  was 
but  in  an  inchoate  state  of  organization,  and  existed  in  this  state  by 
virtue  of  the  acts  of  a  previous  Assembly;  and  during  the  process 
of  its  organization,  the  officers  of  that  previous  Assembly  perform 
their  respective  duties  as  officers  in  the  present  Assembly,  for  the 
purposes  of  organization  merely. 

In  the  first  place  the  General  Assembly  is  constituted  with  prayer 
by  the  moderator  of  the  preceding  Assembly,  and  being  thus  consti- 
tuted proceeds  to  the  business  of  forming  the  roll  of  its  members, 
by  which  the  Assembly  is  organized,  and  until  the  organization  is 
completed,  there  is  no  house  for  the  transaction  of  ordinary  busi- 
ness. There  was  no  house  by  which  any  name  could  be  added  to 
the  roll  reported  by  the  clerks.  I  put  the  question  to  you,  could 
they  be  added  whilst  the  house  was  not  yet  organized?  I  know 
that  you  will  agree  with  me  that  they  could  not.  But  these  gentle- 
men were  too  impatient.  They  made  their  motions  whilst  the 
Assembly  was  in  its  inchoate  or  incipient  state,  whilst  there  was  in 
fact  no  house.  Who  were  to  vote  on  the  question?  Who  were 
the  Assembly?  Do  they  mean  to  assert  that  the  Assembly  was 
that  mixed  crowd  which  thronged  every  avenue  of  the  church  in 
Ranstead  court,  from  the  floor  to  the  galleries,  the  men,  women 
and  children  who  listened  to  the  sermon  and  constituting  prayer  of 
the  moderator,  or  even  all  who  might  pretend  to  be  members  ?  Such 
an  assumption  is  an  absurdity.  That  body  was,  at  that  time,  com- 
posed of  those  members  only  who  had  produced  undisputed  creden- 
tials, and  all  of  this  description  must  have  been  admitted  to  their 
seats  before  the  organization  could  be  completed,  or  the  Assembly 
could  perform  one  valid  act,  except  such  as  had  immediate  con- 
nexion with  the  organization  itself.  The  number  of  such  undis- 
puted commissioners  is  not  material,  provided  they  amount  to  four- 
teen, nor  is  it  a  material  point  whether  they  composed  the  majority 
or  the  minority  of  those  claiming  seats,  they,  and  they  only,  were 
the  persons  to  whom  a  question  could  be  legally  put.  As  to  the 
ascertainment  of  who  are  entitled  to  their  seats,  the  rule  decides 
how  it  shall  be  done.  In  the  lirst  place,  all  the  commissioners  were 
required  to  present  their  commissions  to  the  clerks,  who,  as  a 


360 

Committee  on  Commissions,  were  to  examine  tiiem,  to  decide  as  to 
their  validity,  and  report  the  roll  to  the  Assembly.  In  the  second 
place,  disputed  and  informal  commissions  were  to  be  referred  to 
the  Committee  of  Elections.  The  moderator  then  proceeds  to  the 
organization,  by  throwing  off  the  exuviae,  or  those  whose  creden- 
tials were  irregular  or  disputed,  and  declaring  those  reported  by  the 
clerks  to  be  members  of  the  house. 

Now,  in  connexion  with  this  organization  of  the  Assembly,  there 
is  another  circumstance  which  deserves  a  passing  notice.  It  is 
this.  Dr.  EUiott  was  not  our  moderator.  Suppose,  then,  that  he 
did  wrong ;  his  wrong  is  not  to  be  imputed  to  us.  We  did  not  even 
appoint  him.  He  was  not  our  moderator.  Our  opponents  say  that 
the  conduct  of  the  moderator  vitiated  the  organization  of  the  Gene- 
ral Assembly  of  1838,  and  therefore  authorized  them  to  do  what 
they  did.  They  cannot  substantiate  this  allegation  unless  they  can 
make  it  appear  that  the  moderator  had  control  of  the  Assembly,  or 
was  the  Assembly  itself.  Dr.  Elliott  was  in  fact  the  moderator  not 
of  1838  but  of  1837,  and  was  to  continue  in  office  only  to  preside 
at  the  organization  of  the  General  Assembly  of  1838.  They  were 
continued  in  office  by  the  rule  merely  during  the  process  of  organi- 
zation in  1838.  The  Assembly  then  were  not  responsible  for  the 
acts  of  the  moderator,  unless  they  had  sustained  those  acts  by  a 
solemn  vote  of  the  body,  which  they  did  not,  as  it  has  been  clearly 
proved  that  no  question  was  put  to  the  house.  An  appeal  was 
indeed  taken  from  the  decision  of  the  moderator,  that  a  motion  was 
out  of  order  at  that  time,  and  the  appeal  was  declared  to  be  also 
out  of  order,  but  no  question  had  been  put  to  the  house.  Now  how 
does  it  appear  that  the  house  sustained  that  decision  of  the  modera- 
tor? In  no  way  whatever.  They  assumed  that  position  for  the 
purpose  of  turning  him  out.  But  at  the  same  time  they  are  driven 
to  the  necessity  for  another  purpose,  of  maintaining  the  contrary. 
Both  propositions,  though  they  are  contradictory  to  each  other, 
they  must  maintain,  or  they  cannot  sustain  their  cause.  Their 
course  in  regard  to  this  matter  is  any  thing  but  a  straight-forward 
course.  In  such  an  endless  labyrinth  of  difficulties,  do  those  who 
depend  on  cunning  usually  involve  themselves. 

But  we  did  not  sustiain  the  moderator  of  his  acts,  for  no  oppor- 
tunity was  afforded  us  of  acting  on  the  matter  in  anywise.  We 
could  not  pass  those  resolutions  which  were  offered  by  them  until 
the  General  Assembly  was  organized.  And  they  are  not  to  infer 
that  we  would  not  have  passed  them  after  the  organization.  If  they 
had  waited  and  given  us  an  opportunity,  we  might  then  have  pass- 
ed them ;  and  if  we  had  refused,  they  might  then  have  had  some 
shadow  of  ground  for  this  allegation  against  us.  But  we  did  not 
sustain  the  moderator,  and  we  are  not  bound  by  his  proceedings. 
We  think  that  he  did  right.  But  thinking  so  will  not  implicate  us 
without  an  overt  act.  "  Ah !  but,"  say  the  learned  gentlemen  on  the 
other  side,  "you  acquiesced  in  the  moderator's  refusal  to  put  the  ques- 
tions on  the  appeals  to  the  house."  They  thus  attempt  to  implicate  us 
by  that  eternal  intendment  of  law.  But  when  the  moderator  decided 
that  the  appeal  was  out  of  order,  was  any  appeal  taken  from  that 


361 

decision?  Certainly  not.  There  was  no  appeal  from  the  dc-ision 
of  the  moderator  on  that  question.  The  house  did  noi  decide  the 
question,  for  he  did  not  put  the  appeal  to  the  house.  Mr.  Cleave- 
!and  did  not  venture  to  say  to  the  house,  "Gentlemen,  the  modera- 
tor has  refused  to  do  his  duty:  he  has  refused  to  put  an  appeal  to 
the  house;  therefore,  /put  it  to  you:  Will  you  sustain  him  in  this 
decision  ?"  In  not  daring  to  do  this,  the  only  leijitimate  thino"  to  be 
<ione,  if  he  could  interpose  at  all,  he  showed  that  he  had  assumed 
the  position  for  another  purpose.  If  Mr.  Cleaveland  and  his  asso- 
ciates had  appealed  from  the  decision  of  the  moderator,  that  the 
appeal  of  Dr.  Mason  was  out  of  order,  and  the  house  had  sustained 
the  moderator,  there  might  have  been  some  show  of  a  wild  sort  of 
justice  in  their  proceedings.  But  Mr.  Cleaveland  did  not  put  sucJi 
a  question  to  the  house.-  Admitting  then  that  the  moderator  was 
guilty  of  misconduct.  How  did  we  acquiesce?  Besides  t!iis,  as 
I  have  already  said,  Dr.  Elliott  was  not  our  moderator.  Why  then 
should  we  be  held  responsible  for  his  acts?  In  a  dispute  between 
him  and  a  member,  the  member  was  check-mated.  The  house  did 
not  interfere,  and  cannot  be  implicated,  even  by  an  intendment  of 
law.  When  the  moderator  refused  to  put  ihe  appeal,  if  there  was 
necessity  tor  any  other  person  to  put  a  question  to  the  house,  that 
person  could  only  put  the  question  that  I  have  mentioned.  This 
position  is  so  clear  as  to  strike  you  at  first  view. 

But  there  is  another  consideration  connected  with  this  matter. 
Who,  if  any  one,  was  authorized  to  interpose  ?     This  was  not  a 
case  in  which  who  ever  might  please  was  justified  in   rising   up 
in  the  Assembly  to  take  the  lav^-  into  his  own  hands.     For  cen- 
turies this  case  has  been  provided  for  by  parliamentary  rules.     The 
refusal  of  the  presiding  officer  to  put  the  question  on  an  appeal  is, 
if  wrong,  a  breach  of  privilege,  and  a  question  of  privileges  mav 
be  instantly  raised,  a  question  which  overrides  every  thing  else. 
The  member  whose  rights  are  thus  infringed  has  a  right  to  appeal 
to  the  house;  he  may  say,  "I  stand  on  a  question  of  privilege,"  and 
move  that  the  speaker  be  impeached,  that  the  house  proceed  to  try 
him  for  misconduct  in  office  ;   thus   by  the  regular  process  may 
the  speaker  be  deposed  and  punished,  according  to  the  powers  of 
the  body,  and  the  demerit  which  they  shall  find  in  him,  and  during 
the  process  the  clerk  may  take  his  place.     But  where  was  it  ever 
heard,  that  in  any  deliberative  assembly  the  aggrieved  member  was 
endowed  with  all  the  powers  of  the  executive  officer?     If  the  she- 
riff of  the  city  and  county  of  Philadelphia  should  refuse  to  evecute 
a  writ,  to  him  directed  by  this  court,  would  your  honour,  therefore, 
be  at  liberty  to  descend  from  the  bench  and  execute  it  yourself?     If 
the  President  of  the  United  States  refuse  to  execute  the  laws  as  he 
is  required  to  do  by  the  constitution,  am  I  at  liberty  to  assume  the 
office  and  exercise  all  its  functions?     An  executive  or  presiding 
officer   may  be  impeached  and   removed  for  the  non-fulfilment  ot 
the  duties  of  his  office.     But  when  you  do  this,  you  must  make  the 
question  a  question  of  privilege.     The  law  is  laid  down  very  dis- 
tinctly;  Grey  v.,  133,  and  Hatsell  ii.,  175,  176. 
31 


362 

The  same  principJe  is  laid  down  by  Jefferson  in  his  Manual,  p. 
115,  and,  to  quote  an  authority  of  v(;ur  own  state,  by  Sutherland  in 
his  Manual,  p.  95.  Thus,  without  a  resort  to  force,  violence,  or 
revolution,  all  the  decisions  of  tiie  speaker  are  subject  to  the  super- 
vision of  the  house  itself.  Bui  they  cannot  be  brought  before  the 
house  unless  by  raising  a  question  of  privilege,  or  impeaching  the 
speaker. 

But  in  this  case  the  moderator  could  not  be  im{)eached  exactly, 
although  he  might  have  been  in  error,  because  he  existed  only  as  the 
moderator  of  the  General  Assembly  of  1837,  and  during  the  process 
o^  organization  of  the  General  Assembly  of  1838.  The  question  might 
at  IcMst  be  raised  whether  a  moderator  of  a  former  Asseml)ly,  acting 
as  presiding  officer  of  this,  were  subject  to  impeachment  for  his  con- 
duct during  the  process  of  organization  of  the  new  Assembly.  lie  ex- 
ercised his  duty  of  constituting  and  organizing  the  General  Assem- 
bly of  1838  in  obedience  to  an  established  law. 

I  now  propose  to  show  that  those  proceedings  of  Mr.  Cleaveland 
and  the  rest  of  these  New  School  gentlemen  were  in  every  part 
essentially  disorderly.  They  were  altogether  disorderly  froni  be- 
ginning to  end.  I  appeal  to  their  own  minutes  as  testimony  in  the 
case.  In  the  first  phice,  Dr.  Patt(jn  made  a  motion;  and  I  will 
here  remind  you,  gentlemen,  that  every  one  of  these  things  was 
done  by  advisement  of  "counsel  learned  in  the  law,"  both  as  to 
time  and  place.  The  drama  was  written  out,  and  the  characters  in 
that  drama  were  cast;  each  one  of  the  actors  had  his  appropriate 
place  assigned  him;  each  his  own  part  to  act,  and  each  was  anxiously 
wailing  the  arrival  of  the  period  when  he  should  appear  on  the  stage. 

What  say  they?  Scarcely  had  the  benediction  left  the  lips  of  the 
moderator,  when  the  faice  commenced  by  Dr.  Patton's  presenting 
his  preamble  and  resolutions,  when  as  yet  there  was  no  house  in 
existence,  no  Assembly,  except  that  mixed  multitude  of  men,  women 
and  children,  convened  in  the  church.  To  this  mixed  multitude, 
"the  Rev.  William  Patton,  D.  D."  oti'ered  his  resolutions.  He  in- 
troduced them  as  the  very  first  business,  and  thus  superseded  the 
clerks  with  their  report  on  the  roll,  and  on  this  account  the  mode- 
rator declared  this  rigmarole  of  Dr.  Patton  to  be  out  of  order.  He 
informed  him  that  the  first  business  was  the  report  of  the  clerks  on 
the  roll.  Dr.  Patton  api^ealed  from  this  decision  of  the  moderator. 
I  am  inclined  to  think  the  decision  of  the  moderator  was  unexpected, 
that  it  deranged  the  plan  of  proceeding  that  iiad  been  deiermined 
on  by  Dr.  Patton  and  his  friends.  They  were  well  aware  that  if 
the  question  had  been  put  on  the  resolutions  offered,  the  decision 
"would  have  been  against  then)  and  ihey  had  shaped  their  course 
to  meet  that  exigency.  But  the  moderator  stated  that  he  was  out 
of  order,  as  the  clerk  was  on  the  floor;  whereupon  the  moderator 
was  reminded  by  Dr.  Patton  that  "he  had  the  floor  before  the 
clerk."  But  the  clerk  was  the  person  who  was  first  entitled  to  tlie 
floor.  The  reading  of  his  report  was  the  very  first  business,  and 
the  next  business  was  the  appointment  of  a  Committee  of  Elections. 
That  is  the  law,  and  if  there  is  Iain  for  ike  act,  that  law  shall  vindi- 
cate that  act.     The  moderator  informed  him  that  the  clerk  had  the 


363 

floor,  and  Dr.  Patton  said  that  he  had  the  floor  before  the  clerk  had. 
That  is  the  point.  If  Dr.  Patton  had  not  been  trampling  on  all  law 
and  order,  if  he  had  not  been  endeavouring  to  embarrass  the  pro- 
cess of  organization,  he  would  not  have  insisted  that  he  had  the 
floor  before  the  clerk,  when,  by  the  rules,  the  clerk  must  proceed  to 
read  the  ref)ort  on  the  roll,  as  the  first  business.  Dr.  Patton  knew 
this,  and  when  the  moderator  reminded  him  of  it,  he  was  instantly- 
struck  dumb,  it  was  so  obvious  that  the  moderator  must  first  hear 
the  clerk's  report  on  the  roll  in  order  to  the  very  existence  of  the 
General  Assembly.     And  there  was  an  end  to  Dr.  Patton. 

The  part  of  Dr.  Mason  came  next,  which  was  to  offer  the  reso- 
lution :  "That  the  roll  be  now  coiTipletcd  by  adding  the  names  of 
all  commissioners  now  present  from  the  several  presbyteries  within 
the  bounds  of  the  Synods  of  Utica,  Geneva,  Genessee  and  the 
Western  Reserve." 

Was  this  a  response  to  the  previous  call  of  the  moderator,  in  any 
sense  in  which  he  could  understand  that  call?  Take  any  of  the 
forms  given  in  the  testimony,  and  it  evidently  was  a  call  for  com- 
missions to  be  presented  to  the  clerks,  as  executive  officers,  to  be 
by  them  enrolled,  provided  they  were  regular.  But  Dr.  Mason  of- 
fered a  formal  resolution,  that  certain  commissions  which  had  been 
previously  rejected  by  the  clerks  should  be  annexed  to  the  roll.  The 
resolution  was  altogether  unusual,  and  unprecedented.  It  was  an 
appeal  to  the  legislative  power,  and  in  no  sense  a  response  to  the 
call.  The  rule  required  that  these  executive  officers,  the  clerks, 
should  receive  all  commissions  which  should  be  presented  to  them 
in  Hccordance  with  the  rule,  and  enrol  or  reject  them.  And  if  the 
clerks  should  reject  them,  the  rule  required  that  they  should  be  re- 
ferred to  the  Committee  of  Elections.  Dr.  Mason  knew  all  this, 
and  knowing  it,  appealed  at  once  from  the  decision  of  the  clerks, 
not  to  the  Committee  of  Elections,  but  to  the  Assembly  itself;  thus 
superseding  the  Committee  of  Elections,  and  abrogating  their  au- 
thority.    He  was,  then,  clearly  out  of  order. 

The  object  of  forming  the  roll  is  to  ascertain  who  shall  vote,  and 
this  the  moderator  was  endeavouring  to  effect.  Their  object  was 
to  allow  all  them  to  vote  who  chose  to  claim  a  right  of  membership 
in  the  General  Assembly.  It  was,  in  point  of  fact,  a  proposition 
that  all  persons  who  were  there  should  vote,  whether  they  were 
regularly  there  or  not.  In  other  words,  that  the  gentlemen  from 
presbyteries  belonging  to  the  four  excluded  synods  should  vote  on 
the  question  whether  they  had  a  right  to  vote.  Dr.  Mason's  mo- 
tion embraced  the  strange  and  anomalous  proposition  in  rela- 
tion to  the  officers  and  members  of  the  Assembly,  to  disfranchise 
them  in  one  case,  and  invest  them  with  powers  in  other  cases,  with- 
out regard  to  the  regular  forms  of  proceeding  in  either.  It  was 
not  to  repeal  the  law  which  required  a  Committee  of  Elections. 
That  might  have  required  a  majority  of  two-thirds  of  the  regular 
and  undisputed  members.  He  desired  to  effect  his  object  by  a 
simple  vote  of  the  Assembly.  His  motion  was  clearly  a  violation 
of  order. 


364 

I  now  come  to  the  part  of  Mr.  Squier  in  these  transactions.  It 
is  thus  described  in  these  minutes.     [See  p.  259  of  this  report.] 

Now,  J  think  that  I  can  despatch  this  Mr.  Squier  in  very  short 
order.  Mr.  Squier's  commission  had  been  rejected  by  the  clerks, 
and  without  any  pretence  that  he  was  a  member  of  the  house  (for 
his  name  was  not  entered  on  the  roll,  and  consequently  he  acted 
without  having  produced  any  prima  facie  evidence  of  right  to  a 
seat  in  that  body,)  yet  this  Mr.  Squier  has  the  presumption  to  sub- 
mil  a  motion  for  the  body  to  entertain.  If  he  could  vote  in  that 
Assembly,  any  body  could  vote  there.  I  might,  with  as  much  pro- 
priety, undertake  to  submit  a  motion  and  vote  in  any  assembly 
under  heaven,  regardless  alike  of  the  rules  of  order,  and  of  the 
rights  of  the  body.  It  was  absolutely  ridiculous,  and  shows  the 
disorderly  character  of  the  whole  of  their  proceedings.  He  must 
have  known  that  until  the  Committee  of  Elections  should  decide 
that  he  was  a  member,  he  had  no  right  to  open  his  mouth.  But  he 
seems  to  have  been  very  eager  to  show  off' his  talents  as  a  speaker. 
Besides  all  this,  every  one  must  perceive  that  there  was  then  no 
house  to  which  he  could  submit  his  demand.  He  made  it,  then,  of 
all  present,  himself  included.  Well,  let  us  regard  it  in  this  point  of 
view.  Mr.  Squier  says,  "I  move,  Mr.  Moderator,  that  I  be  entered 
on  the  roll  of  members.  I  demand  it."  If  the  moderator  should 
declare  him  to  be  out  of  order,  to  whom  could  he  appeal  ?  Would 
he  appeal  to  himself?  It  was  a  strange  confusion  of  ideas  w^hich 
could  lead  any  person  to  attempt  to  make  a  motion,  who  was  not  a 
recognized  member  in  some  shape  or  form.  T;:ere  is  in  this  con- 
nexion another  matter  which  now  occurs  to  me.  Mr.  Squier  pre- 
sented himself  as  a  member  avowedly  in  the  face  of  the  decision  of 
the  whole  Presbyterian  Church,  which  had  declared  that  he  was 
not  a  member  ;  all  which  he  showed,  in  the  same  breath  in  which 
he  stated  that  his  commission  had  been  presented  to  the  clerks  and 
by  them  rejected.  Thus  in  the  very  face  of  the  decision  of  ihat 
whole  Assembly,  and  in  defiance  of  both  executive  and  legislative 
decisions,  he  claimed  to  be  a  member,  made  a  speech,  and  de- 
manded that  his  claim  should  be  acknowledged,  and  this,  too,  before 
the  Assembly  was  more  than  partially  organized. 

The  presiding  officer  said  to  him,  "We  do  not  know  you,  sir." 
Now,  could  any  thing  have  been  more  simple  and  appropriate  than 
this  reply  of  the  moderator.  "  We  do  not  know  you,  sir."  The 
learned  counsel  and  some  of  the  witnesses  omitted  the  word  "sir," 
which  materially  qualifies  the  expression,  and  explains  what  Dr. 
Elliott's  meaning  really  was:  that  is,  "The  General  Assembly  does 
not  know  you.  We  do  not  recognize  you  as  a  member."  No  an- 
swer could  possibly  have  been  more  appropriate.  Yet  of  this  sim- 
ple and  appropriate  intimation  from  the  chair,  expressions  have 
been  used  which  require  some  comment  from  me  at  this  time.  The 
learned  counsel  on  the  other  side  has  deemed  it  consistent  with  his 
impressions  of  duty,  to  cast  an  imputation  on  Dr.  Elliott  which  the 
expression  never  warranted,  which  strange  imputation,  you,  gen- 
tlemen, cannot  but  know  to  be  wholly  gratuitous.  He  has  told  you 
that  Dr.  Elliott  meant  to  hurl  against  these  men,  that  most  terrible 


365 

denunciation ;  the  most  terrible  of  any  on  record ;  that  Dr.  Elliott 
intended  to  denounce  on  Mr.  Squier  and  his  associates  eternal  dam- 
nation! Is  it  not  going  somewhat  too  far,  to  impute  to  him  feelings 
of  such  direful  nature,  on  account  of  his  having  uttered  that  simple 
and  appropriate  expression?  Certainly  no  person  can  believe  it. 
Such  a  thing  never  entered  the  head  of  Dr.  Elliott.  The  imputa- 
tion is  unjust  and  groundless.  He  had  no  allusion  to  the  denuncia- 
tion in  that  awful  text  of  Scripture  alluded  to  by  the  learned  counsel; 
and  it  would  be  monstrous  injustice  to  cast  such  an  imputation  on, 
him.  The  position  occupied  by  the  learned  counsel,  enabled  him 
to  attribute  to  Dr.  Elliott  every  thing  that  is  diabolical.  I  do  not 
say  that  he  represented  the  feelings  of  others  when  he  indulged  in 
this  sally  of  the  imagination;  I  do  say  that  their  imaginations 
were  unduly  excited.  This  imputation  betrays  the  real  situation  of 
our  opponents  at  that  time.  They  imagined  that  they  saw  every 
thing  diabolical  in  our  conduct.  Dr.  Elliott  repels  the  imputation 
with  pious  horror.  But  this  is  only  of  a  piece  with  the  picture 
which  they  have  drawn  of  other  scenes,  representing  the  Old  School 
party  as  sitting  in  solemn  conclave,  in  fearful  and  tremulous  ex- 
pectation of  being  attacked  by  an  approaching  adversary;  tailing 
the  advice  of  lawyers  in  forming  their  minutes  and  concocting  their 
plans;  imagining  every  thing,  suspecting  every  thing,  and  appre- 
hending all  sorts  of  strange  and  fearful  occurrences. 

In  the  height  of  the  distemper,  the  phrenzy  of  this  fancy,  they  saw- 
in  every  man  a  lawyer,  and  in  every  word  a  quirk.     Designing  to 
entrap  others  they  watched  every  thing  they  saw,  lest  perchance  it 
should  be  a  snare  spread  for  them.     And  this  feeling  they  have  im- 
parted to  the  learned  counsel.     I  am  sure  that  he  could  never  have 
conceived   such   imputations   against   us,  till  they  suggested   it  in 
giving  him  instructions.      Dr.  Mason  was  under  the  influence  of 
this  wild  creative  imagination.     Yie  fancied  that  he  heard  the  name 
of  Mr.  Boynton  when  Mr.  Krebs  was  reading  the  roll,  though  Mr. 
Boynton  was  not  present,  and  Mr.  Krebs  expressly  tells  you  that 
his  name  never  escaped  his  lips.     Mr.  Gilbert  also  is  a  man  of  the 
warmest  imagination.     He  it  was  that  formed  the  roll  for  these  New 
School  men,  and  how  did  he  form  his  roll.     His  vivid  imagination 
certainly  possesses  the  creative  powers  of  the  wand  of  a  conjurer. 
He  tells  you  that  he  made  up  his  roll  from  that  of  Mr.  Krebs,  and 
that  he  corrected  Mr.  Krebs's  roll  from  statements  published  in  the 
the  newspapers.     "Ah!  how  did  you  do  that?"     "  Why  I  did  it!" 
"Did  you  see  the  list  of  names  on  Mr.  Krebs's  roll?"    "No."    "Did 
you  see  the  commissions?"     "No."     Being  pressed  by  the  counsel, 
"I  will  tell  you  how  I  did  it.     I  heard  Mr.  Krebs  read  over  the 
roll,  and  I  wrote  down  some  of  the  names,  as  he  read."     "  Well, 
did  you  make  out  the  whole  of  your  roll  whilst  he  was  reading?" 
"f  corrected  it."     "Where  did  you  get  your  original  list  from?" 
"I  got  it  from  the  newspapers,  and  as  Mr.  Krebs  read  his  roll,  I 
corrected  it,  by  putting  in,  or  striking  out  names."     Here,  indeed, 
was  a  most  potent  effort  of  his  imagination.     He  had  a  roll  of  his 
own,  a  roll  which  Mr.  Krebs  had  not,  and  it  was  on  separate  pieces 
of  paper,  being  derived  from  different  sources,  and  these  pieces  of 

31* 


366 

paper  constituted  the  roll  that  he  held  in  his  hand,  when  he  took  his 
imaginary  seat  as  clerk,  standing  in  the  aisle,  like  Dr.  Beman  their 
chairman,  who  stood  up  whilst  he  sat  in  his  imaginary  chair.  "  Had 
you  any  paper,  pens,  or  ink  with  you?"  "No;  but  nevertheless  I 
was  clerk."  "  Well,  how  did  you  make  up  your  roll  out  of  those 
two  lists,  which  you  then  held  in  your  hand?"  "Why,  I  considered 
them  as  being  one.  1  considered  them  as  the  roll."  And  thus,  was 
their  roll  formed  by  consideration;  by  an  intendment  of  law. 

May  it  please  your  honour :  His  imagination  is  so  vivid  that  he 
thinks  the  two  separate  pieces  of  paper  are  but  one.  I,  however, 
have  no  objection  to  this  gentleman's  having  any  thing,  or  all  things 
in  creation  in  his  imagination,  as  he  had  his  pens  and  paper,  when 
he  imagined  himself  clerk,  by  consideration. 

In  this  state  of  excitement  all  these  New  School  men  appear  to 
have  acted.  Dr.  Mason  discovered  the  same  potent  fancy  when 
he  held  the  imaginary  clerkship.  But  there  is  another  instance  in 
which  Mr.  Gilbert  displayed  the  energy  of  his  creative  fancy.  He 
is  an  ardent  party  man  and  extremely  zealous  in  this  controversy. 
He  comes  to  the  church  in  Ranstead  court.  His  imagination  of 
course  was  excited  to  the  very  highest  pitch.  We!!,  he  attempts  to 
pass  through  the  passage  by  the  door  of  the  session  room,  a  little 
apartment  about  ten  feet  wide,  immediately  back  of  the  pulpit.  He 
sees  the  clerks  silting  there.  They  have  some  papers  spread  before 
them.  They  also  have  pens  and  ink,  and  they  hold  frequent  con- 
sultations with  each  other.  Instantly  he  imagines  that  they  have 
some  mysterious  purpose  in  view,  that  they  are  occupied  with  some 
diabolical  machinations.  Ah,  thinks  he,  what  a  horrible  conspiracy 
is  here.  If  I  could  only  catch  a  word,  I'd  blow  it  up.  As  thus  he 
listens  attentively  he  happens  to  hear  the  portentous  sound  of  these 
awful  words,  Dr.  M'Dowell  says  to  Mr.  Krebs,  (and  it  seems  to  be 
uttered  in  deep  and  horrid  guttural  sounds,)  ''Lock  that  dooi-!"  What 
an  awful  conspiracy !  Locks,  bars,  bolts  and  dungeons  crowd  upon 
his  brain.  So  intense  is  the  excitement  of  his  imagination,  that  those 
awful  words  "  Lock  that  door,"  have  made  an  indelible  impression 
on  his  mind,  which  time  cannot  efface.  The  sound  of  those  awful 
and  portentous  words  is  always  present  with  him  ;  that  awful  sound 
haunts  his  imagination  both  in  his  waking  and  sleeping  hours.  You 
have  seen  that  as  soon  as  he  was  brought  into  this  court  those 
awful  words  burst  from  his  quivering  lips — "  I  heard  him  say,  'lock 
that  dom:'"     What  images 

-"  Of  things  infernal, 


"  Of  hydras,  gorgons,  and  chimeras  dire," 

must  be  forever  running  through  his  brain,  who  from  the  simple 
act  of  locking  a  door,  could  infer  a  conspiracy  the  most  awful,  who 
could  attribute  to  those  words  sufficient  importance  to  con  them 
over  again  and  again,  to  learn  them  by  rote,  in  order  to  come  here 
and  cast  them  in  our  teeth.  What  would  have  been  the  conse- 
quence whilst  these  frightful  fancies  possessed  his  mind,  if  at  that 
critical  moment  Dr.  M'Dowell  had  had  occasion  to  mend  his  pen. 


367 

nnd  Mr.  Gilbert  had  seen  him  lean  over  the  table  at  which  the 
clerks  were  sitting,  and  had  heard  him  say  to  Mr.  Krebs',  in  that 
awful  and  sepulchral  tone  peculiar  to  the  horrid  dens  ot"  conspira- 
tors, "  Brother  Krebs,  lend  me  your  knife !"  He  would  have  been 
frightened  to  death;  at  least  he  would  have  imagined  that  he  was 
about  to  be  murdered  on  the  spot.  With  his  mind  hlled  with  horror 
he  would  have  instantly  fled  the  house,  and  never  have  been  seen 
there  again.  I  have  no  doubt  that  he  would  have  been  so  fearfully 
excited,  that  by  this  time  he  would  have  seen  in  his  imagination  a 
Bowie-knife  at  least  a  foot  and  nine  inches  long. 

Gentlemen,  I  have  now  gone  through  nearly  all  the  points  of 
order  in  this  case.  But  there  are  a  few  other  points  in  regard  to 
which  I  deem  it  necessary  to  speak.  I  would  most  cheerfully  leave 
these  points  to  the  learned  counsel  who  is  to  follow  me,  if  J  did  not 
feel  that  duty  requires  something  more  at  my  hands.  I  must  there- 
fore claim  some  further  indulgence  from  you.  If,  however,  you 
will  agree  not  to  censure  me,  I  will  despatch  them  in  the  shortest 
space  and  time  possible. 

With  your  Honour's  permission  I  will  now  lay  before  the  court 
and  jury  what  remains  of  my  argument  in  this  important  cause. 

Gentlemen  of  the  Jury, — I  take  it  for  granted  that  in  all  organic 
bodies,  in  what  manner  soever  constituted,  independently  of  the  ele 
mentary  rules  which  have  been  framed  for  the  government  of  the 
body,  and  of  the  requisitions  of  parliamentary  law,  there  are  always 
certain  principles  or  things  existing,  which,  in  the  nature  of  the  case, 
must  operate  as  strongly  as  any  actual  regulations  can  possibly  oper- 
ate. In  other  words,  there  are  circumstances  connected  with  all  par- 
liamentary bodies  which,  independently  of  all  rules  and  regulations, 
must,  by  their  own  nature,  control  their  acts,  though  no  reference  be 
had  to  the  existence  of  those  circumstances.  In  this  examination, 
therefore,  of  the  acts  of  an  organic  body,  with  a  view  to  determine 
whether  those  acts  have  been  in  accordance  with  law  and  former 
usage,  it  maybe  important  to  inquire,  whether  at  the  crisis  contempla- 
ted there  did  not  exist  circumstances  which  in  their  nature  prevented 
the  organization  of  the  Assembly,  circumstances  which,  according 
to  the  nature  of  things,  rendered  it  impossible  that  the  body  could 
be  organized,  or  that  any  plan  of  action  could  be  established. 
For  where  there  exist  circumstances  which  render  it  morally  or 
physically  impossible  to  organize  the  body,  that  fact  alone  is  suf- 
ficient of  itself  to  incapacitate  it  for  arriving  at  any  practical  or  valid 
result.  To  illustrate  this  position:  a  man  may,  under  the  law  of 
God,  do  certain  things,  and  in  accordance  with  the  law  of  his  coun- 
try, if  his  physical,  moral  and  intellectual  organization  be  complete. 
But  if  any  circumstances,  though  extraneous  in  their  nature,  pre- 
vent the  exercise  of  his  accustomed  powers  of  either  body  or  mind, 
the  same  things  cannot  be  predicated  of  him.  Thus,  if  a  man  re- 
ceives a  blow  on  the  head  which,  by  suspending  or  destroying  the 
nervous  energy,  renders  him  senseless,  nothing  can  be  predicated 
of  him  as  a  being  in  the  exercise  of  his  organic  powers.  So,  as  in 
the  case  of  an  individual,  there  may  be  circumstances  affecting  an 
assemblage  of  men,  which  are  sufficient  to  produce  that  moral  or 


368 

physical  disability  which  entirely  precludes  all  organic  action;  and 
produces  either  temporary  inc.-ipacily  or  dissolution. 

N.'-.w,  in  what  position  did  the  General  Assetni)ly  of  1838  present 
itself,  considered  as  an  organic  corporate  body,  if  you  will  permit 
me  to  make  use  of  the  expression?  Was  that  body  in  a  capacity 
to  fulfil  the  designs  and  execute  the  functions  of  a  body  acting 
under  the  law  of  its  incorporation?  I  tell  you,  gentlemen,  and  1 
tell  you  under  the  direction  and  sanction  of  the  testimony,  that  at 
the  time  when  these  proceedings  took  place,  the  General  Assembly 
was  rendered  physically,  if  not  morally,  incapable  of  corporate 
action.  That  body  had  received  a  blow  on  its  sensorium  which 
had  paralyzed  all  its  energies.  And  if  you  once  admit  that  the 
members  of  the  Assembly  were  affected  with  a  physical  incapacity 
for  regular  action,  you  divest  it  of  all  accountability,  as  if  a  delibe- 
rative or  parliamentary  body  were  dissolved  by  the  violent  irruption 
of  a  foreign  power  forcibly  separating  its  meinbers,  and  taking  pos- 
session of  the  usual  place  of  meeting.  Such  was  the  scene  which 
occurred  on  the  18th  Brumaire,  when  Napoleon  at  the  head  of  his 
armed  legions  entered  the  legislative  hall,  then  occupied  by  the 
Council  of  Five  Hundred,  silenced  the  members  at  the  point  of 
the  bayonet,  drove  them  from  the  house,  and  dissolved  the  assem- 
bly. It  would  be  clearly  impossible  for  a  deliberative  body  to  ex- 
ercise its  functions  in  the  midst  of  a  cannonade,  or  whilst  the  drums 
were  beating  in  the  hall  where  the  members  are  convened.  The 
existence  of  these  circumstances,  or  any  portion  of  them,  would 
render  all  attempts  at  the  transaction  of  business  nugatory  and 
truitless,  and  any  thing  which  might  be  done  under  such  circum- 
stances would  be  wholly  invalid.  The  body  itself  would  be  dis- 
solved, or  if  not  dissolved,  it  would  be  stunned  and  senseless,  and 
for  the  time  being,  lifeless. 

Now  it  is  established,  as  far  as  a  negative  can  bo  established,  that 
in  the  present  case  the  Assembly  was  physically  incapacitated,  as 
to  judging  of  any  subject  which  might  be  submitted  to  it,  at  that 
period  of  its  existence,  and  it  therefore  was  released  from  all  obli- 
gation in  relation  to  what  then  transpired.  An  intendment  of  law 
will  not  bind  any  under  such  circumstances.  The  proceedings 
which  may  take  place  in  any  assembly  are  not  binding  by  legal 
intendment,  in  the  proper  sense  of  the  term,  when  those  proceed- 
ings took  place  with  the  design,  or  under  such  circumstances,  that 
all  could  not  participate  therein.  Such  was  the  fact  in  this  case 
by  reason  of  the  noise  which  prevented  the  members  from  hearing 
what  passed.  I  am  asked,  where  is  the  proof  of  this?  The  proof  is 
in  the  circumstances  attending  those  transactions.  We  have  col- 
lected a  large  number  of  those  who  were  present  in  the  General 
Assembly  of  1838,  as  members  of  that  body,  and  all  these  gentle- 
men, with  one  accord,  have  testified  that  they  did  not  hear  that 
question  on  which  the  whole  case  turns.  They  have  all  told  you 
that  it  was  impossible  for  them  to  hear  what  the  New  School  men 
did,  in  consequence  of  the  confusion  and  noise  which  they  made, 
but  which  (if  you  choose)  was  aggravated  by  the  noise  of  the  Old 
School  party.     The  noise  (occasioned  by  the  two  parties  combined, 


369 

if  you  please)  prevented  the  question  from  being  heard.  It  is  of  no 
consequence  whether  one  or  both  of  the  parties,  or  all  the  persons 
present,  participated  in  making  the  noise.  During  that  period  of 
outrageous  disorder  and  confusion,  it  was  utterly  impossible  to  per- 
fect any  business  whatever,  because  the  proceedings  could  not  be 
understood.  A  large  portion  of  the  Assembly  did  not  hear  what 
was  proposed,  and  not  hearing  it,  they  were  released  from  all  lia- 
bility on  its  account.  If,  in  consequence  of  the  uproar,  riot,  and 
confusion  which  prevailed,  amidst  a  general  outcry,  it  was  impos- 
sible to  execute  the  rules  of  order,  and  equally  impossible  to  hear, 
then  the  proceedings  were  absolutely  void.  The  question  is  as  to 
the  fact,  whether  we  did  hear  or  not.  They  must  first  prove  that 
we  heard,  or  we  cannot  be  bound  by  an  intendment  of  law.  Now, 
we  have  anxiously  sought  and  called  before  us  a  very  large  num- 
ber of  witnesses,  men  of  the  Old  School  party  who  were  members 
of  that  Assembly,  and  we  have  asked  them,  every  one  distinctly, 
"Did  you  hear  those  questions  put?"  and  they  have  all  answered 
"No."  "  Did  you  hear  them  reversed?"  "No."  "Did  you  know 
what  was  done?"  "No."  And  some  of  them  did  not  know  until 
the  next  morning.  Not  a  single  one  of  them  could  hear  those  ques- 
tions. We  have  examined  from  twenty-seven  to  thirty  witnesses 
who  were  members  of  the  General  Assembly,  as  many  of  the  Old 
School  party  as  we  could  get  from  every  section  of  the  country, 
and  proclamation  has  been  made  for  more  of  them  to  come  into 
court  and  testify.  We  have  anxiously  asked,  "Do  you  know  of 
any  one  who  has  not  been  examined?"  and  have  procured  all  that 
We  could.  And  are  we  asked  why  we  did  not  call  up  other  per- 
sons as  witnesses?  I  reply,  we  are  not  bound  to  call  up  those  of 
the  New  School  party  to  examine  them.  The  question  is,  whether 
we  heard  ?  And  we  have  called  on  every  one  whom  we  could 
find  to  testify  in  the  case.  We  are  the  party  implicated,  and  when 
every  one  of  our  party  has  been  called,  and  when  they  with  one 
accord  testify  that  there  was  so  much  noise,  such  uproar  and  con- 
fusion, that  it  was  impossible  for  the  Assembly  to  transact  any 
business  or  to  hear  what  was  said  or  done ;  that  in  point  of  fact  they 
did  not  know  what  had  been  done  until  next  day;  that  they  heard 
nothing  distinctly  of  the  proceedings  of  the  New  School  party,  from 
the  time  that  the  uproar  commenced,  until  they  heard  it  proclaimed 
at  the  corners  of  the  church  that  they  had  adjourned,  this  ques- 
tion is  conclusively  settled.  There  was  the  intervention  of  circum- 
stances which  rendered  it  physically  impossible  for  us  to  partici- 
pate in  any  of  those  proceedings,  even  if  we  had  been  inclined  so  to 
do.  I  venture  to  say,  gentlemen,  that  such  a  decision  has  never  yet 
been  made,  as  that  in  such  circumstances  we  should  be  bound  by 
intendment  of  law.  Can  it  be  possible  that  your  Honour  will  so 
decide  that  we  were  bound  to  hear  though  their  own  acts  prevented 
our  hearing?  It  may  be  remarked  on  the  other  side  that  there 
is  a  notable  discrepancy  in  this  part  of  the  testimony  between  their 
witnesses  and  ours.  Now  all  our  witnesses  do  say  that  they  could 
not  hear,  whilst  their  witnesses,  with  one  or  two  exceptions,  state 
that  they  could  hear,  and  some  of  them  even  that  they  could  hear 


370 

distinctly.  Now  the  learned  counsel  tells  you  that  one  positive  wit- 
ness is  worth  a  thousand  negative  ones.  I  admit  the  correctness  of 
the  principle,  but  he  has  misapplied  it.  Either  the  assertion,  that 
"We  did  hear,"  or  that  "We  did  not  hear,"  is  positive.  And 
nobody  but  myself  can  tell  whether  I  did  or  did  not.  Now  we  have 
proved  by  competent  witnesses  that  we  did  not  hear  their  proceed- 
ings, and  ail  that  they  have  proved  is  that  they  did  hear  them.  All 
the  persons  who  were  examined  were  competent  witnesses.  I 
think  there  are  about  thirty  of  ours  against  about  twenty  of  theirs. 
There  is  certainly  an  apparent,  and  I  will  not  deny  that  there  is  a 
real,  contradiction  amongst  the  witnesses.  P'or  whilst  every 
one  of  the  witnesses  of  the  one  party,  swears  that  all  these  ques- 
tions were  put  and  reversed,  and  that,  in  their  judgment,  in  an  au- 
dible voice,  and  distinctly;  all  the  witnesses  of  the  other  party 
swear  that  they  did  not  hear  them.  Now  there  is  something  curi- 
ous in  this.  There  is  great  discrepancy,  and  how  are  we  to  give 
an  explanation  of  this  contradiction?  Perhaps  they  mean  that 
those  motions  were  made  and  put  audibly  to  one  whose  ear  was 
close  to  the  speaker,  though  not  to  all  who  were  in  the  Assembly. 
But  this  could  not  avail  them.  They  must  prove  that  the  questions 
were  audible  to  us.  We  swear  that  they  were  not;  no  man  can 
prove  the  contrary.  We  have  proof  on  all  sides  that  we  did  not 
hear,  witnesses  from  different  parts  of  the  house,  who  swear  posi- 
tively that  they  did  not  hear  any  question  whatever.  This  testi- 
mony cannot  be  contradicted.  The  other  party  may  swear  till 
doomsday,  without  disproving;  such  testimony.  My  learned  friend 
became  quite  metaphysical,  and  alluded,  in  the  course  of  his  argu- 
ment on  this  subject,  to  certain  principles  in  the  theory  of  sound 
and  in  mental  philosophy.  He  told  you  that  the  ear  does  not  dis- 
tinctly note  accustomed  sounds,  that  sounds  become  familiar  do  not 
arrest  the  attention.  But  were  they  such  familiar  sounds,  that 
echoed  and  re-echoed  through  the  house  in  Ranstead  court?  They 
were  of  a  very  different  character.  The  sounds  then  heard  amidst 
the  confusion  of  that  disorderly  scene,  were  no  twice  told  tale,  ad- 
dressing the  ear  unnoticed.  These  transactions  the  mere  common 
routine  of  business!  Why,  it  was  the  most  extraordinary  scene 
ever  witnessed  within  those  walls.  The  feelings  of  every  person 
in  that  house  were  aroused.  How  could  it  be  otherwise  than  that 
every  person  present  should  anxiously  listen  to  every  sound  that 
issued  from  amidst  the  tumult?  In  the  excitement  of  the  occasion 
every  ear  was  open  to  catch,  if  possible,  every  word.  My  learned 
friend  told  you  that  you  did  not  once  notice  the  striking  of  the 
clock  above  us,  during  the  time  that  he  was  addressing  you,  and 
he  drew  the  inference  that  in  that  Assembly  the  Old  School  party 
did  not  hear  because  the  sounds  were  familiar  to  their  ears.  Now, 
if  it  had  been  the  voices  of  the  Old  School  men  there  might  be  some 
reason  for  this  inference,  but  it  is  highly  improbable  that  the  voices 
of  the  representatives  of  the  New  School  should  be  so  familiar  to 
the  other  party.  I  could  give  a  much  better  reason  for  the  circum- 
stance of  your  not  hearing  the  clock,  than  the  one  which  he  as- 
%w?fJ.     Why  a  stranger  could  scarcely  have  taken  any  note  of 


371 

time,  even  though  he  were  speaking  with  an  iron  tongue.  We  did 
not  hear  it  because  Mr.  Meredith  iiimselt' prevented  us  hearing  just 
as  his  clients  did  in  Ransiead  court.  He  nnade  a  noise,  else  we 
would  have  heard  the  clock.  There  is  one  way  of  reconciling  the 
discrepancy  of  the  testitiiony,  (and  I  am  willing  to  avail  myself  of 
every  possible  way  of  reconciling  it,)  consistently  with  the  most 
perfect  respect  (or  the  witnesses  of  both  sides.  It  may  be  that  the 
gentlemen  of  the  New  School  parly,  knov.iug  what  was  intended 
to  be  done,  and  being  all  on  the  alert,  caught  the  feeblest  intona- 
tions of  the  voice,  and  so  heard  distinctly,  or,  even  with  imagina- 
tions of  much  less  activity  than  some  of  those  gentlemen  appear  to 
have  possessed,  expecting  that  certain  events  would  transpire  at  a 
certain  time,  they  may  have  taken  for  granted  that  such  motions 
were  made  and  questions  put,  and  may  now  fancy  that  they  heard 
them.  It  is  no  unusual  thing  for  the  imagination  thus  to  cheat  the 
memory. 

Another  explanation,  however,  suggests  itself,  which  is,  perhaps, 
the  true  one,  as  it  removes  the  difficulty  entirely.  That  Assembly 
existed  in  two  parties,  and  these  were  in  separate  portions  of  the 
house.  These  manoeuvres  were  performed  in  the  rear  of  the  Old 
School  party,  and  in  the  midst  of  the  New  School  men.  Those 
who  made  the  several  motions  and  put  the  questions,  being  thus  in 
the  very  midst  of  the  New  School  party  addressed  themselves  and 
pitched  their  voice  to  meet  their  auditors.  Nothing  is  more  natu- 
ral than  this.  For  instance,  gentlemen  of  the  jury,  if  I  turn  from 
you  to  address  his  Honour,  the  judge,  the  tone  of  my  voice  falls, 
instinctively  obeying  the  dictate  of  the  eye;  and  it  rises  again  when 
I  say,  "  gentlemen  of  the  jury."  Thus  by  the  instinct  of  nature,  and 
not  design  on  my  part,  the  tone  of  my  voice  is  pitched  in  adapta- 
tion to  the  distance  of  those  to  whom  I  address  myself  On  this 
principle  the  New  School  men  heard  the  motions  and  questions, 
whilst  we  did  not  hear  them.  They  were  located  in  the  immedi- 
ate vicinity  of  the  speakers,  and  the  Old  School  members  were 
more  remote  from  the  scene  of  action.  Whose  fault  then  was  it 
that  the  Old  School  members  did  not  liear?  As  to  us,  if  we  had 
participated  in  the  riot  and  confusion,  then  should  we  be  so  far 
guilty.  But  if  there  were  one  indignant  and  overwhelming  shout 
of  "  order,  order,"  every  one  would  have  been  in  order,  excej)! 
those  who  persisted  in  disobeying  the  call.  They  would  be  com- 
pletely put  out  of  order  by  the  raising  of  the  point  of  order,  as  I 
have  before  explained  to  you.  Charity  forbids  me  to  impute  a 
want  of  candour  or  truth  to  any  of  those  respectable  gentlemen,  or 
even  to  acknowledge  to  my  own  mind  a  belief  of  such  want,  with 
respect  to  any  of  them.  I  am  glad,  therefore,  that  we  can  get  over 
the  difficulty  and  reconcile  the  discrepancy  in  another  way.  I  say 
then  that  the  Old  School  members  were  physically  incapacitated 
for  organic  action,  and  therefore  you  cannot  bind  us  by  an  intend- 
ment of  law,  any  more  than  if  every  man  of  our  number  had  been 
stunned  by  a  blow  on  his  head  from  a  bludgeon,  or  suddenly  struck 
with  deafness.     By  no  law,  human  or  divine,  can  any  man  be  con- 


372 

strued  to  have  assented,  suh  silentio,  to  any  proposition,  because  he 
was  physically  incapable  of  opposing  it. 

We  have  been  taunted  by  the  other  side  for  not  putting  the  ques- 
tion to  Dr.  M'Dowell,  whether  he  heard  the  difi'erent  nnotions  and 
questions  which  are  said  to  have  been  put.     For  he,  says  the  learned 
counsel,  was  likely  to  know  best,  whether  those  questions  were  put 
in  an  audible  voice,  so  as  to  have  been  heard  by  all  the  members 
of  the  Assembly.     We  did  ask  Dr.  Elliott,  whose  situation  was  cer- 
tainly quite  as  favourable  for  hearing  what  transpired.     But  Dr. 
M'Dowell!  the  counsel  queries,  "  Why  did  you  not  ask  him?"     Why 
did  we  not  ask  him  ?  I  reply  that  it  was  not  necessary.     You  would 
infer  from  the  manner  in  which  this  taunt  was  made,  that  it  was 
pregnant  with  meaning,  and  that  we  did  not  ask  him,  because  we 
knew  that  his  answer  would  have  been  against  us.     Now,  what  is 
the  fact?    We  called  Dr.  M'Dowell.    We  presented  him  here  as  our 
witness,  and  of  course  gave  him  up  to  them  for  cross  examination. 
They  might  have  put  that  question  to  him  if  they  had  desired  it. 
They  are  not  responsible  for  his  credibility  or  competency.     If  his 
testimony  is  against  them,  they  may  deny  it,  or  disprove  it  if  they 
can.     We  retort,  by  returning  the  question,  why  did  not  they  ex- 
amine him  on  that  point?     We  in  effect  bantered  thern  to  do  so  and 
they  declined.     We,  however,  were  not  bound  to  bring  out  their 
case  for  them.     Our  business  is  to  develope  and  establish  our  own. 
The  gentlemen  shrunk  from  the  examination.     But  I  will  tell  you, 
gentlemen,  what  was  the  true  reason,  why  we  did  not  examine  Dr. 
M'Dowell  and  every  other  witness  also,   on  every  point  in  this 
cause.     We  had  proved  the  main  points  in  the  case  over  and  over 
again,  and  we  feared  that  his  Honour  the  judge  would  become 
weary  with  the  repetition  of  the  same  things,  and  that  your  pa- 
tience, gentlemen,  would  become  exhausted  by  listening  to  such  a 
mass  of  testimony,  for  days  and  weeks  together,  and  we  refrained 
lest  the   case  might   be  overlaid.     The  whole  case   turns  on  the 
question,  whether  those  whose  silence  they  are  endeavouring  to 
construe  into  an  acquiescence,  heard  the  questions  put.     But  de- 
pend upon  it,  gentlemen,  when  the  witness  was  turned  over  to  them, 
if  they  had  thought  that  they  could  draw  any  thing  from  him  unfa- 
vourable to  our  side,  and  beneficial  to  their  own,  they  would  have 
promptly  asked  him  the  question.     I  would  query  of  my  learned 
friend  if  Dr.  M'Dowell  presents  the  only  case  of  this  kind,  which, 
with  all  his  acumen,  he  has  been  able  to  discover.     We  had  here 
all  that  we  could  get  here,  and  we  called  every  man  that  we  could 
lay  our  hands  on.     Every  Old  School  member  who  was  present 
was  examined,  and  we  made   proclamation  from   the    witnesses 
stand,  for  others  to  come  forward.     Unquestionably  all  those  of  our 
party  who  were  principal  actors  in  the  scene  have  been  examined, 
otherwise  we  should  have  considered  that  we  were  acting  un- 
fairly. 

But  who  have  been  produced  as  witnesses  by  the  other  side? 
Where  are  your  standard-bearers  and  trumpeters?  Where  are 
your  arch-anarchs,  your  generalissimos,  the  leaders  of  your  forces? 
Europe  has  one  of  them ;  Ohio  another,  or  he  has  gone  somewhere 


373 

else,  to  the  west  or  north-west.  These  were  the  only  persons  who 
are  fully  competent  to  explain  the  whole  of  the  transactions  of  that 
eventful  day-  Why  then  are  they  not  here  to  testify?  We  have 
presented  all,  rank  and  file,  and  even  the  surgeon-general  has  not 
been  omitted.  But  where  are  their  superior  officers?  Why  are 
they  not  here?  They  have  sedulously  shown  that  these  men  are  at 
a  distance.  I  ask,  why,  when  the  welfare  of  their  church  so  im- 
periously demands  their  presence  here,  and  when  their  own  charac- 
ters are  so  deeply  involved  in  the  controversy?  Why  are  not  Dr. 
Beman  and  Mr.  Cleaveland  here,  when  it  is  their  own  conduct  that 
is  passing  under  review,  and  severely  scrutinized  ?  If  these  men 
are  unavoidably  absent,  why  have  not  their  depositions  been  pro- 
duced in  this  court?  Why  was  not  the  original  paper,  which  was 
read  by  Mr.  Cleaveland,  and  which  has  elicited  so  much  ani- 
madversion, produced  here?  or  why  are  not  their  depositions  in 
court?  You  will  be  surprised,  gentlemen,  to  learn  that  they  are 
here.  Though  these  depositions  have  not  been  read  in  evidence 
before  you,  they  are  in  the  hands  of  the  opposing  counsel,  and  have 
been  all  along.  Why  have  they  not  been  read  ?  Perhaps  I  should 
not  have  adverted  to  these  extraordinary  and  most  significant  cir- 
cumstances, if  we  had  not  been  taunted  by  my  learned  friend.  We 
ask  them,  and  we  ask  emphatically  and  triumphantly,  why  do  you 
not  read  the  depositions  of  these  principal  actors  in  all  your  pro- 
ceedings, when  we  know  that  they  were  taken,  and  are  here  in  this 
court,  in  the  pockets  of  the  counsel.  This  circumstance  got  out, 
notwithstanding  their  desire  to  conceal  it  from  us.  You  were  in- 
formed of  the  fact  by  Dr.  Patton,  who,  in  reply  to  a  question  put  to 
him  during  his  cross-examination,  told  you  that  he  had  seen  those 
depositions  in  the  hands  of  the  counsel.  Mr.  Cleaveland  was  the 
very  Coryphasus  of  the  party,  and  Dr.  Beman  occupied  the  next 
most  elevated  position  in  their  ranks,  and  yet  their  testimony  is  not 
produced  here.  Though  their  depositions  were  taken,  in  nicely 
phrased  documents,  they  have  been  carefully  withheld  from  the 
court  and  jury,  the  opposing  counsel  having  stowed  them  away  in 
their  pockets.  Those  two  gentlemen  were  the  leaders  of  the  revo- 
lutionary forces.  They  had  been  "  instructed  by  counsel  learned 
in  the  law."  The  sound  of  their  voices  rallied  the  troops  to  the  con- 
test, and  every  thing  which  they  proposed  was  answered  by  a  tre- 
mendous shout,  a  deafening  burst  of  a-y-e  from  their  zealous  fol- 
lowers and  partizans.  Their  testimony  would  shed  a  blaze  of  light, 
would  reveal  the  mysteries  of  those  transactions,  in  which  they  took 
so  conspicuous  a  part.  But  they  are  absent,  and  the  very  paper  on 
the  purport  of  which  the  whole  case  turns,  is  not  produced  to  the 
jury.  Had  these  papers  been  produced  they  might  perhaps  have 
explained  the  discrepancies  in  the  testimony  of  the  witnesses.  But 
those  intelligent,  honest,  and  candid  Christian  gentlemen,  could  not 
understand  alike  what  transpired.  Both  parties  agree  as  to  there 
having  been  a  great  noise  and  tumult,  while  they  disagree  as  to 
their  source.  By  both  parties,  however,  the  fact  is  fully  establish- 
ed, that  in  the  midst  of  such  a  state  of  things,  it  was  utterly  impos- 
sible for  the  Assembly  to  get  along  with  the  transaction  of  any  busi- 

32 


374 

ncss,  in  a  regular  and  orderly  manner;  and  that  is  the  very  point 
for  which  we  contend,  and  which  must  decide  the  controversy  in 
our  favour.  But  not  only  this.  I  am  about  to  state  the  astounding 
fact,  still  more  remarkable  than  the  discrepancies  and  contradic- 
lions  of  the  witnesses,  that  the  testimony  of  all  those  twenty  wit- 
nesses who  have  been  called  by  the  New  School  party,  is  expressly 
and  pointedly  contradicted  by  the  solemn  and  deliberate  record  of 
their  own  Assembly.  That  body  made  a  statement  respecting  the 
organization  which  is  in  evidence  before  you  in  their  minutes. 

Now  of  the  twenty  witnesses  of  the  New  School  party  who  have 
testified  viva  voce,  in  relation  to  the  organization,  many  of  them 
say  that  they  heard  negative  as  well  as  affirmative  voles  on  the 
questions.  They  are  confident  that  they  heard  both.  Several  of 
them  did  not  know  that  the  question  was  reversed,  except  from  the 
fact  that  they  distinguished  a  few  negative  votes.  And  one  of  these 
New  School  gentlemen,  Mr.  Lathrop,  stated  that  he  voted  in  the 
negative  himself.  Such  are  the  statements.  Such  is  the  testimo- 
ny by  which  they  intended  to  prove  that  the  negative  was  put. 
But  these  same  gentlemen,  or  many  of  them,  as  members  of  the 
Assembly  which  met  in  the  First  Presbyterian  Church,  have  given 
us  what  was  then  their  original  understanding  of  the  matter,  each 
one  recorded  his  solemn  vote  in  favour  of  a  very  different  account 
spread  upon  their  record.  Within  a  few  hours  only  after  the  oc- 
currences had  taken  place,  these  very  gentlemen  sat  down  together 
in  the  First  Church,  relieved  from  the  anxiety  and  excitement  at- 
tendant on  the  revolution  which  they  had  just  effected,  and  coolly 
and  deliberately  declared  that  each  of  the  questions,  put  previously 
to  that  nominating  Dr.  Fisher  for  moderator,  was  carried  without 
one  dissenting  voice.  This  declaration  is  put  on  their  record  as 
testimony  to  be  appealed  to  in  all  future  time.  Now  is  it  not  a  most 
singular  spectacle  to  see  these  gentlemen  come  into  this  court  and 
swear  that  there  were  negative  votes  on  each  of  those  questions? 
and  that,  after  the  whole  Assembly,  of  which  they  formed  a  part, 
had  established  the  fact  that  there  were  no  dissentient  voices.  How- 
great  must  have  been  the  confusion  and  excitement  of  the  imagi- 
nation to  produce  not  only  this  extraordinary  discrepancy  between 
the  testimony  of  respectable,  intelligent,  and  candid  gentlemen,  but 
also  this  remarkable  variance  between  the  testimony  of  these  same 
persons,  at  different  times,  and  under  different  circumstances,  and 
especially  between  the  oral  testimony  of  these  witnesses  and  the 
written  record  of  their  own  Assembly !  This  distinctly  says,  in 
relation  to  the  several  officers  elected,  with  the  single  exception  of 
Dr.  Fisher,  "  And  no  other  persons  being  nominated  they  were 
unanimously  appointed,"  &c.  And  again :  "  The  motion  to  adjourn 
was  carried  unanimously."  There  is  the  appointment  of  no  less 
than  three  officers  of  the  body,  and  the  motion  for  adjournment,  all 
of  which  the  record  says  were  carried  "  unanimously,"  while  of 
Dr.  Fisher,  as  moderator,  it  is  said  that  he  was  "chosen  by  a  large 
majority."  I  will  here  stop  a  moment  to  meet  an  objection  started 
by  the  ingenuity  of  counsel  on  the  other  side.  I  am  aware  that 
the  learned  counsel  stated,  or  may  state,  that  by  the  standing  rules 


375 

of  the  General  Assembly,  and  the  provisions  of  parliamentary  lawv 
•where  there  is  but  one  person  nominated,  technically  speakino;,  he  is 
unanimously  elected.  Then  they  did  not  mean  that  the  vote  was 
unanimous  in  point  of  fact,  but  unanimous  by  intendment  of  law. 
This  record  then  is  not  according  to  the  facts  which  transpired,  if  lite- 
rally stated,  but  according  to  a  legal  intendment.  They  may  thus 
attempt  to  reconcile  this  discrepancy.  But  even  that  excuse  shall 
not  avail  them.  They  shan't  have  an  inch  of  ground  to  stand  on. 
I  will  not  take  their  excuse.  They  shall  not  be  allowed  to  give  the 
legal  intendment,  and  not  the  fact,  in  the  case  of  Dr.  Beman,  and 
then  to  give  the  fact  and  not  the  legal  intendment  in  the  case  of 
Dr.  Fisher,  as  they  have  done  in  this  minute,  which  states  that  Dr. 
Beman  was  unanimously  chosen,  and  that  Dr.  Fisher  was  chosen 
by  a  large  majority.  I  want  fact,  the  direct  fact.  Why  do  they 
thus,  in  relation  to  the  one,  assert  the  direct  fact,  and  in  relation  to 
the  other,  the  negative  in  the  case,  unless  because  in  the  one  case 
there  was  a  necessity  for  concealment,  and  in  the  other  there  was 
none? 

In  conclusion,  gentlemen,  I  remark,  what  his  honour  will  bear 
me  out  in  saying,  that  up  to  the  time  of  the  session,  when  these 
gentlemen  left  the  church  in  Ranstead  court,  the  General  Assembly 
of  1838  had  done  nothing  of  which  they  have  complained,  or  could 
complain.  Their  complaint  is,  that  the  officers  of  the  General  As- 
sembly of  1837  had  done  something,  the  clerks  and  the  moderator 
had  done  wrong,  they  had  endeavoured  for  a  short  period,  (and  for 
a  very  short  period  only)  to  defer  the  question  as  to  the  rights  of 
eertain  of  the  commissioners  to  the  Assembly  of  1838.  Their  com- 
plaints are  not  urged,  their  charges  are  not  brought  against  that 
house  which  was  constituted  with  prayer,  and  afterwards  partially 
organized,  for  they  seceded  before  the  regular  proceedings  of  the 
General  Assembly  of  1838  had  commenced.  You  will  bear  in 
mind  that  that  house,  as  a  General  Assembly,  stands  entirely  un- 
connected with  the  General  Assembly  of  1837.  That  Assembly 
was  f  )rever  extinct.  The  General  Assembly  of  1838  was  fully 
capable  of  undoing  every  thing  of  the  doings  of  the  General  Assem- 
bly of  1837,  but  there  was  no  application  made  to  the  General  As- 
sembly of  1838,  either  to  repeal  the  acts  of  1837  or  to  admit  the 
delegates  from  the  four  excluded  synods  to  the  seats  which  they 
claimed  in  that  Assembly.  I  should  like  to  know  by  what  species  of 
law  the  rights  and  privileges  of  one  hundred  and  ^/iy  commissioners, 
"who  constituted  the  majority  of  that  house  were  thus  ruthlessly  in- 
vaded, their  Assembly  thrown  into  disorder,  their  proceeding  in 
business  obstructed,  and  their  organization  broken  up  and  scattered 
to  the  winds,  for  the  fault  of  the  clerks  and  of  the  moderator.  I 
should  like  to  know  by  what  species  of  law  you  invalidate  the  pro- 
ceedings of  our  Assembly  in  1838,  because  the  officers  of  the  As- 
sembly of  1837,  or  oven  that  Assembly  itself,  had  acted  improperly? 
On  what  princi|)le  are  we  to  be  bound  to  answer  for  the  proceed- 
ings of  the  Assembly  of  1837?  Is  this  a  specimen  of  the  doctrine 
of  imputation  and  atonement  as  held  by  the  new  Assembly?  Can 
you  impute  the  offence  of  one  quasi  corporate  body  to  another? 


376 

It  would  be  saying,  that  by  the  fnll  of  the  General  Assembly  of 
1S37  we  all  sinned,  and  that  the  only  atonennent  which  can  eradi- 
cate that  original  sin  and  restore  us  to  favour,  is  ihe  sacrifice  of  the 
General  Assembly  of  1838,  which  is  thus  guilty  by  imputation. 
This  would  be  the  imputation  of  original  sin  with  a  vengeance. 
But  unlike  the  original  sin  of  the  progenitor  of  the  human  race,  you 
would  here  cut  off  all  hopes  of  a  glorious  resurrection.  Suppose, 
that  as  they  complain,  the  acts  of  the  Assembly  of  1837  were  un- 
constitutional and  unjust,  it  is  not  for  us  to  vindicate  them.  If  in 
the  heat  of  their  excitement  they  have  chosen  to  asperse  them,  let 
them  do  so.  Let  them  vilify  and  blacken  the  members  of  the  Ge- 
neral Assembly  of  1837  with  demoniacal  virulence,  if  they  are  so 
inclined,  still  we  are  not  affected.  They  claim  to  be  the  successors 
of  that  body,  and  their  whole  anxiety  has  been  to  attain  the  reputa- 
tion of  being  their  legitimate  successors.  And  you  will  bear  in 
mind  that  they  set  up  that  claim  whilst  they  were  still  in  the  church 
in  Ranstead  court.  They  thus  affect  themselves  and  not  us  by  vili- 
fying and  blackening  the  General  Assembly  of  1837.  I  do  not  wish 
to  commit  myself.  But  they  claim  to  be  the  General  Assembly 
whilst  they  have  completely  annulled  us,  as  they  suppose,  at  one 
breath.  They  have  struck  at  our  very  existence,  have  annihilated 
us,  account  us  nothing,  and  will  not  even  profane  their  lips  by  giving 
us  the  poor  boon  of  a  name.  They,  a  minority,  have  done  by  us, 
the  majority,  what  they  complain  of  our  doing  by  thein,  the  mino- 
rity. They  excinded  us,  the  majority  of  the  church.  Have  they 
not  driven  us  from  the  General  Assembly?  and  having  thus  driven 
us  from  the  church  of  our  fathers,  they  are  now  seeking  to  drive  us 
from  the  possession  of  the  funds  of  the  church.  If,  as  they  say,  a 
cruel,  tyrannical  and  despotic  blow  has  been  inflicted  on  them,  have 
they  not  dealt  another,  equally  as  cruel  and  despotic?  Why  have 
they  aimed  this  tremendous  blow  at  our  devoted  heads?  Admit- 
ting that  they  were  for  a  time  deprived  of  control  over  any  part 
of  the  funds,  is  that  sufficient  to  justify  them  in  now  claiming  the 
whole,  even  the  Princeton  Theological  Seminary,  which  they  never 
supposed  to  belong  to  them?  When  they  accuse  us  of  diabolical 
conduct  in  enacting  the  resolutions  of  1837,  which  have  been  the  sub- 
ject of  so  much  animadversion,  when  they  cast  at  us  that  terrible 
raw-head  and  bloody-bones  made  up  of  the  ghosts  o(  four  synods, 
twenty-eight  presbyteries,  six  hundred  and  nine  churches,  five  hun- 
dred ministers,  and  sixty  thousand  communicants,  shall  we  not  be 
allowed  to  retort  by  showing  how  they  have  excinded  and  stricken 
out  of  existence  the  whole  Presbyterian  church  in  the  United  States 
of  America,  including  no  less  than  twenty-three  synods,  one  hun- 
dred and  thirty-five  presbyteries,  two  thousand  eight  hundred 
churches,  two  thousand  ministers,  and  tiro  /lundred  and  twenty 
thousand  communicants?  Shall  not  our  voices  be  heard  in  a  court 
of  justice,  in  our  own  defence,  when  they  have  thus  excinded  and 
annulled  us  all;  when  they  are  striking  at  us  these  desperate  blows, 
not  because  we  have  committed  any  otfence,  but  because  another 
Assembly  had  offended  these  New  School  gentlemen,  and  we  pro- 
posed to  defer  for  a  time  the  decision  whether  certain  gentlemen, 


377 

claiming  to  be  the  representatives  of  certain  synods,  were  entitled 
to  their  seats  in  the  General  Assettibly  of  183H!  True,  they  now 
say  to  us,  "By  intendment  of  law,  you  have  excluded  yourselves." 
Thev  sav  that  we  are  a  limb  which  has  been  severed  from  ihe  main 
trunk.  Well,  if  we  are  a  limb,  the  limb  is  four  or  five  times  as  big 
as  the  body.  According  to  their  new  fangled  logic  this  limb,  vio- 
lently torn  from  the  body,  now  lies  bleeding  in  the  dust,  weltering 
in  its  gore,  whilst  the  body  from  which  it  was  torn,  though  only 
one-fourth  to  one-sixth  as  large,  still  continues  to  live  and  flourish. 
They  tell  you  that  we  might  have  come  there  and  taken  our  seats 
in  their  Assembly  at  any  time,  that  their  doors  and  their  hearts 
were  always  open  to  receive  us.  Now,  this  is  but  adding  insult  to 
injury,  it  is  solemn  mockery,  a  mere  farce.  They  know  that  being 
the  majority  we  would  have  killed  them,  entirely  annihilated  them 
by  going  in  amongst  them.  Yet  they  call  themselves  the  General 
Assembly  by  declaring  that  we  were  present,  by  an  intendment  of 
law.  They  have  built  their  hopes  on  our  imaginary  presence,  when, 
if  we  had  been  really  present,  we  would  have  annulled  them.  Away 
■with  it.  Away  with  all  such  artifices.  Away  with  all  such  vain 
and  shallow  pretexts!  They  had  entirely  separated  themselves 
from  the  majority.  They  have  excinded  not  merely  four  synods  but 
the  whole  church,  at  one  fell  swoop.  These  gentlemen,  the  party 
of  the  relators,  here,  have,  a  large  proportion  of  them,  no  grievance 
to  complain  of.  If  there  were  any  who  had  suffered  any  grievance 
of  which  they  could  complain,  they  were  the  delegates  from  the 
four  synods.  Those  fifty-four  gentlemen  who  had  been  excinded 
had  been  aggrieved,  if  any  body  had,  and  they  alone  had  a  right 
to  com[)lain.  The  other  of  the  hundred  and  forty  gentlemen  who 
sympathized  with  them  had  suffered  nothing  at  all.  We  had  not 
excinded  their  Assembly,  nor  had  we  excinded  Ihem  from  our  As- 
sembly. They  took  their  seats  there  when  the  Assembly  of  1838 
first  met,  and  we  might  retort  upon  our  opponents  that  our  Assem- 
bly was  open  to  all  of  them  at  all  times.  Those  who  went  off'  of 
their  own  accord  could  have  re-taken  their  seats  there,  whenever 
they  pleased.  And  as  to  the  gentlemen  belonging  to  the  four  synods, 
they  could  have  returned  to  us,  quite  as  easily  as  we  could  have 
gone  to  them.  We  had  provided  a  mode  for  their  re-union  with 
us,  as  they  say  that  they  had  for  our  becoming  re-united  to  them. 
They  can  come  yet,  if  they  are  Presbyterians.  But,  say  these  gen- 
tlemen, in  a  spirit  which  proves  how  far  their  characteristic  humi- 
lity extends,  "  shall  we  humble  and  degrade  ourselves  by  seeking 
admission  into  your  society  after  your  having  told  us  that  we  did 
not  belong  to  it?  We  meek,  humble,  self-denying  Christian  gentle- 
men are  too  proud  to  meet  you  in  the  way  which  you  have  of  your 
own  hearts  devised."  Is  this  the  language  of  the  promulgators  of 
the  religion  of  the  meek  and  lowly  Jesus?  too  proud  to  l)ow  their 
stately  necks  to  the  requirements  of  the  church  ?  Is  this  the  con- 
sistency of  men  who  profess  to  be  following  him  who  established 
that  church  ?  Shall  conscientious  men,  the  followers  of  him  who 
was  altogether  meek  and  lowly,  manifest  such  pride  of  mind  as  to 
say  they  will  not  submit,  that  their  manhood  forbids  it !     What  I 

32* 


378 

will  you  call  on  them  to  ask  admission  as  humble  supplicants?  No, 
those  ffty-four  gentlemen,  ilie  one-sixth  part  of  the  Assembly,  are 
too  proud  to  submit  to  ihe  other  five- sixths,  thus  proving  thai  they 
are  determined  to  reign  sujireme.  They,  tiie  minority,  will  not 
submit  to  us  who  are  the  majority.  They  will  not  stoop  to  abase 
their  haughty  diadem.  Hut  we  must  degrade  ourselves  by  stooping 
to  them.  We,  the  m;ijority,  must  follow  lliem,  the  vagrant  minority, 
and  as  humble  suppliants  beg  for  admission,  that  we  may  be  con- 
sidered a  part  of  their  Asseml)ly.  They  will  not  he  reduced  to  the 
necessity  of  complying  with  our  terms,  but,  on  the  contrary,  we 
must  yield  to  those  prescribed  by  them.  And  they  are  now  endea- 
vouring to  lay  their  sacrilegious  hands  on  the  whole  funds  of  the 
church,  because  we  will  not  submit  to  their  dictation.  At  the  same 
time  that  they  refuse  to  submit  even  for  a  moment  to  our  officers, 
they  say  that  we  might  come  into  their  church  if  we  would  submit 
to  their  terms. 

I'he  gentlemen,  on  the  other  side,  endeavour  to  impose  on  us  by 
talking  about  union  and  harmony,  and  they  have  poured  forth  an 
affected  dirge  of  lamentation  because  these  two  portions  of  the  church 
are  thus  separated,  the  one  from  the  other,  and  affect  to  believe  that 
a  restoration  of  union  and  harmony  will  imfnediately  take  place, 
that  the  church  will  again  be  united  if  you  give  them  your  verdict. 
Believe  them  not.  Such  a  thing  is  impossible.  You  must  perceive 
that  it  is  absolutely  impossible  when  you  see  the  state  of  feeling 
which  now  exists.  You  have  here  but  a  faint  illustration  of  that 
feeling,  even  as  you  now  behold  them  arrayed  against  each  other 
in  the  arena  of  a  temporal  court,  where  they  appear  like  gladiators 
opposing  each  other  toe  to  toe,  and  point  to  point.  They  have  not 
here  suffered  their  characters,  as  gentlemen,  to  be  implicated  by 
the  manifestation  of  a  violent  ebullition  of  passion  in  this  court,  and 
consequently  have  suppressed  and  concealed  from  you  the  inten- 
sity of  their  feelings.  These  gentlemen  propose  the  establishment 
of  union  and  harmony  in  the  Presbyterian  Church  by  your  giving 
a  verdict  in  their  favour;,  a  thing  inconceivable,  whilst  they  are 
seeking  either  to  compel  us  to  go  beseeching  to  them  as  a  fragmen- 
tary portion  of  the  church,  or  to  deprive  us  of  every  thing  that  we 
hold  dear,  or  regard  as  sacred.  Why  do  they  hold  out  this  delu- 
sive idea?  Why  should  they  thus  attempt  to  deceive  by  crying 
"Peace,  peace,  when  there  is  no  peace?"  They  know  full  well 
that  sooner  than  be  amalgamated  with  them,  we  should  be  riven  to 
pieces  and  scattered  in  disentegrated  fragments.  Such  an  amalga- 
mation is  utterly  impossible,  whilst  we  maintain  our  integrity.  No: 
there  can  be  no  true  reconciliation, 

"  Where  wounds  of  deadly  hate  have  pierced  so  deep." 

I  care  not  in  what  terms  you  express  your  verdict,  whether  it  be 
in  the  spirit-stirring  language  of  the  seraphic  poet,  or  in  the  words 
of  the  Odes  of  Sappho.  But  we  have  come  to  the  natural  conclu- 
sion, that  any  elucidation  of  what  would  be  the  probable  efiect  of 
such  a  verdict  as  they  claim,  will  shed  light  on  this  subject. 


379 

What  then  would  probably  be  the  effect  of  a  verdict  which 
should,  by  an  intendment  of  law,  establish  the  minority,  as  what 
they  claim  to  be,  the  whole  General  Assembly  of  the  wh(de  Presby- 
terian Church  ?  What  is  the  purpose  of  these  genilemen  1  that  you 
should  give  all  the  funds  of  the  church  to  a  meagre  minority.  I 
would  a[)peal  to  them,  i  appeal  to  the  candour  of  these  gentlemen, 
What  would  you  do  with  the  money  if  you  had  it?  What  would 
you  do  with  Princeton  iSeminary  if  you  should  unexpectedly  suc- 
ceed in  snatching  it  from  our  hands  by  a  mere  trick,  a  quirk,  an 
intendment  of  law?  How  would  you  manage  the  seminary  at 
Cincinnati,  (at  Pittsburgh  I  mean,)  and  how  would  you  manage  the 
affairs  of  the  whole  Presbyterian  Church  in  Pennsylvania,  in  Virgi- 
nia, in  the  whole  south  and  west,  in  short,  in  the  whole  of  the 
United  States?  How  would  they  manage  it?  I  will  tell  you  how. 
An  instance  has  been  furnished  which  shows  us  how.  They  have 
commenced  with  turning  out  Dr.  Green,  and  very  soon  every 
venerable  ))illar  in  the  church  would  follow.  They  would  never 
be  satisfied  until  every  oiiice  and  every  post  of  honour  in  the  church 
should  be  filled  with  these  New  School  gentlemen.  What  have 
these  New  School  men  to  do  with  the  Princeton  Seminary?  Did 
ihey  establish  it,  or  have  they  supported  it?  Has  that  seminary 
been  sustained  by  the  Synods  of  Uiica,  Genessee,  Geneva,  and  the 
Western  Reserve?  Have  they  contributed  to  its  support?  It  is, 
as  they  themselves  acknowledge  it  to  be,  an  Old  School  institution. 
The  very  ground  on  which  that  seminary  is  built  was  a  donation, 
not  from  them,  but  from  the  very  man  whose  name  they  first  struck 
from  the  list  of  trustees,  (I  am  corrected  ;  one  half  the  lot  was  a  do- 
nation from  him,)  the  venerable  Dr.  Green.  The  object  of  these 
relators  is  to  take  from  him  that  very  property,  in  New  Jersey,  to 
take  it  from  him  and  bestow  it  upon  the  delegates  from  the  Wes- 
tern Reserve  synod,  and  the  representatives  from  the  three  synods 
in  the  interior  of  the  state  of  New  York,  together  with  all  the  Con- 
gregationalists  in  New  England.  Will  gentlemen  send  their  sons 
there  to  receive  tlieir  education,  if  you  should  give  it  to  them? 
They  can't  manage  it,  they  know  they  can't.  Well,  suppose  they 
gain  possession.  When  the  excitement  of  this  contest  shall  be  over, 
they  will,  they  must  feel  that  your  verdict  has  given  them  the  con- 
trol of  charities  to  which  they  have  no  just  claim,  and  which  they 
ought  not  to  have  undertaken.  The  seminary  at  Auburn  is  a  New 
School  institution.  We  do  not  wish  to  exercise  any  control  over 
it,  even  if  we  had  it  in  our  power.  We  would  touch  none  of  their 
funds.  To  their  own  consciences  I  appeal;  and,  in  the  presence  of 
God,  let  them  answer  it.  Would  you  be  justified  before  God  in 
thus  laying  hold  of  these  noble  charities,  which  were  designed  by 
the  donors  for  another,  and  a  diflferent  purpose?  Will  you,  by  a 
mere  intendment  of  law,  dare  you,  seize  on  our  property,  and  take 
fro  n  us  our  inheritance? 

Gentlemen  of  the  Jury, — I  have  now  exhibited  what  the  other 
party  claim  to  have  done  in  the  General  Assembly  of  1838,  and  I 
have  also  shown  you  what  they  actually  did  at  that  time,  and  also 
what  they  have  not  done.     From  this  view  of  the  case  it  is  clear. 


380 

that  should  you  concur  with  the  relators  and  render  a  verdict  for 
them,  it  will  go  to  establish,  as  far  as  a  single  act  can  establish, 
their  entire  control  over  every  part  of  the  church  property.  It 
will  utterly  disfranchise  the  Old  School  party,  without  any  prospect 
of  restoring  peace  to  the  church.  A  verdict  establishing  their 
claims,  unsupported  as  they  are,  except  by  the  allegation  of  inriagi- 
nary  wrongs,  will  be  regarded  as  gross  injustice  to  us.  The  case 
will  shortly  be  with  the  jury,  and  you  must  render  a  verdict,  and 
though  I  hope  for  such  a  verdict  from  you  as  I  anticipated  in  the 
preliminary  stage  of  my  argument,  yet  should  your  verdict  be 
against  us,  should  you  disfranchise  ihe  Old  School  party,  and  by 
reason  of  intendment  of  law,  give  the  whole  of  the  funds  of  the 
Presbyterian  Church  to  those  who  have  not  the  shadow  cxf  rightful 
claim  to  them,  who  have  themselves  acknowledged  that  they  had 
no  title  by  which  they  could  claim  those  funds,  the  moral  sense  of 
every  individual  in  the  community  will  revolt  at  the  unjust  decree. 
In  ihe  preliminary  portion  of  my  argument,  1  alluded  to  certain 
papers  containing  a  correspondence  between  the  representatives  of 
these  two  parlies  in  the  church,  with  a  view  to  an  amicable  divi- 
sion, which  correspondence  shows  what  was  the  state  of  their  feel- 
ings in  1837.  I  then  observed  that  the  Old  School  party  had  made 
to  these  New  School  men  a  most  just  and  liberal  otler,  which  the 
New  School  party  saw  fit  to  refuse.  I  will  now  refer  to  those 
papers  and  that  correspondence  again.  This  brings  us  at  once  to 
the  consideration  of  the  so  much  reviled  General  Assembly  of  1837. 
What  were  their  views  concerning  the  funds  of  the  church  at  that 
time?  What  did  each  party  then  propose  to  the  other,  relative 
thereto?  In  that  Assembly,  in  which  the  Old  School  party  had  a 
decided  majority,  on  a  proposition  from  that  party  a  joint  commit- 
tee was  appointed,  or  a  diplomatic  college,  consisting  of  an  equal 
number  of  the  Old  School  and  New  School  parties,  which  resolved 
itself  into  two  separate  bodies,  from  the  time  of  their  first  meeting; 
five  members  on  each  side,  each  proposing  to  engraft  certain  con- 
ditions on  an  instrument  of  compromise,  for  the  amicable  division 
of  the  church,  which  division  both  parlies  regarded  as  desirable. 
We  have  in  evidence  the  result  of  their  diplomatizing.  The  Old 
School  men  commenced  ihe  negotiation  in  this  form.  (See  "  No. 
1,  of  the  Majority,"  page  51  of  this  report.) 

This  is  the  first  solemn  proposition  of  the  representatives  of  the 
majority  to  those  of  the  minority. 

Now,  the  other  parly  are  saying  in  the  newspapers  and  else- 
where, that  if  your  verdict  is  for  them,  the  church  will  not  be 
divided,  but  we  shall  all  go  with  them.  But  let  us  see  how  they 
thought  in  1837.  See  their  documents  in  this  diplomatic  college 
for  agreeing  on  the  manner  of  a  division.  The  paper  containing 
their  first  communication  in  reply  to  the  representatives  of  the 
majority,  or  Old  School,  runs  thus,  (see  "No.  1,  of  the  Minority," 
pp.  51  and  52  of  this  report.)  "Difierence  of  views  in  relation  to 
important  points  of  church  policy  and  action,  as  well  as  theological 
opinion,  are  found  to  exist."  This  was  then  the  language  of  the 
New  School  party.     Note  another  expression,  "  Now,  it  is  believed 


381 

that  a  division  into  two  separate  bodies  will  be  of  vital  importance 
to  the  best  interests  of  the  Redeemer's  kingdom."  Both  parties 
agreed  as  to  the  propriet)'  and  advanliiges  of  a  separation  of  the 
General  Assembly  into  two  bodies.  Yet  notwithstanding  this,  the 
New  School  party  now  tell  us  that  such  a  division  would  be  unna- 
tural, and  that  the  two  paities  must  be  kept  in  union  by  compul- 
sion. They  would  now  bind  the  Old  School  party  hand  and  foot, 
and  thus  manacled,  have  them  delivered  over  the  victims  of  the 
law,  to  pievent  that  very  division  of  the  church  which  they  them- 
selves deemed  to  "  be  of  vital  importance  to  the  best  interests  of  the 
Redeemer's  kingdom."  In  view  of  the  importance  of  the  measure 
of  division  to  these  vital  interests,  they  then  made  the  distinct  pro- 
position, which  we  give  in  their  own  language:  "The  General 
Assembly  shall  be  divided  into  two  bodies."  They  proposed,  then, 
a  division  of  the  church,  on  the  account  of  wide  dift'erences  in  opi- 
nions relative  to  policy  and  action,  and  even  in  matters  of  faith. 
They  also  acknowledge  the  power  of  the  General  Assembly  to 
make  this  division;  provided,  however,  that  the  final  decision  be 
referred  by  the  Assembly  to  the  Presbytery.  Next,  in  stating  the 
terms  on  which  they  were  willing  to  agree  to  a  division  of  the 
church,  they  make  sundry  specifications,  in  the  last  of  which  they 
distinctly  ofl^er  to  transfer  the  whole  of  the  seminary  fund  to  the 
Old  School  Assembly,  to  those  very  gentlemen  whom  I  now  repre- 
sent. The  learned  counsel  severely  animadverted  on  the  circum- 
stance of  the  proposal  for  a  division  having  originated  wiih  the  Old 
School  party.  I  will  not  stop  to  argue  that,  but  out  of  the  mouths 
of  his  own  clients  I  am  able  to  show,  by  these  ten  propositions 
-which  they  made  to  the  Old  School,  that  they  fully  acceded  to  the 
primary  proposition.  It  is  a  matter  of  no  consequence  then  which 
made  the  first  proposition.  But  when  we  accede  to  the  proposition 
merely  repeating  their  own  terms,  they  accuse  us  of  intending  to 
perpetrate  a  monstrous  fraud,  and  under  the  cover  of  an  apparently 
liberal  ofl^er,  to  secure  to  ourselves  every  vestige  of  the  church  pro- 
perty. Yet  I  repeat  it,  that  very  proposition  was  first  ttiade  to  us 
by  themselves.  How  could  they,  then,  discover  fraud  in  the  pro- 
position, unless  they  intended  to  perpetrate  a  fraud  on  us?  We 
used  their  own  words,  and  how  is  it  that  those  words  are  fraudu- 
lent in  our  mouths  and  not  in  theirs?  If  there  be  any  fraud,  it  is 
theirs,  not  ours.  They  were  the  authors  of  that  proposition,  except 
that  we  added  the  expression,  "  Provided  the  will  of  the  donors  will 
permit."  And  they,  surely,  intended  to  include  this  idea,  unless 
they  proposed,  with  even  more  astuteness  than  the  learned  counsel 
has  charged  upon  the  Old  School  party,  that  one  l:alf  of  the  funds 
should  be  transferred  to  thein,  no  matter  what  the  intention  of  ihe 
donors  might  have  been,  setting  a  trap  by  which  they  could  take 
the  other  lalf  afterwards,  by  an  intendment  of  law.  In  their  second 
paper,  (see  previous  page  53,)  the  minority  insist  on  an  equal  divi- 
sion of  the  church  funds.  Then  in  proposition  No.  2,  of  the  ma- 
jority, (see  previous  page  53,)  you  will  see  that  ihey  agree  in  the 
main  points,  but  propose  a  slight  modification  of  the  form  in  which 
the  proposition  should  stand  in  regard  to  a  division  of  the  property. 


382 

This  is  the  proposition  of  the  Old  School  party,  and  they  not 
only  agree  with  the  New  School  in  all  the  material  points,  but 
adopt  nearly  their  very  words.  Their  proposition,  however,  con- 
tains one  item  which  is  original  with  the  Old  School  party,  that  is 
the  proposition  for  the  appointment  of  committees  to  adjust  these 
matters,  and  of  arbitrators,  with  "full  power  to  settle  finally  the 
whole  case  in  all  its  parts;"  thus  guarding  against  any  appeal  "to 
the  legal  tribunals  of  the  country."  In  the  language  of  the  New 
School,  a  division  of  the  church  was  "of  vital  importance  to  the 
best  interests  of  the  Redeemer's  kingdom."  And  we,  acquiescing 
in  this  proposition,  come  forward  and  propose  the  appointment  of 
"a  Board  of  Arbitrators"  to  adjust  every  thing  in  relation  to  it, 
agreeing  to  abide  by  their  decision,  whatever  it  might  be,  in  order 
to  save  the  church  from  becoming  the  humiliating  spectacle  which 
is  now  witnessed  before  a  civil  tribunal.  We  desired,  by  referring 
the  whole  controversy,  as  far  as  regards  property,  to  an  impartial 
tribunal,  to  save  the  church  of  our  fathers  from  C(mlesting  the  mat- 
ter with  all  the  acrimony  and  violence  incident  to  such  proceed- 
ings, as  well  from  the  humiliation  of  contesting  the  claims  of 
the  respective  parties,  in  this  acrimonious  manner  as  from  scan- 
dalizing Christianity  in  view  of  the  whole  world.  But  this  proposi- 
tion, made  in  the  spirit  of  equity,  which  the  dictates  of  their  religion 
enjoin,  did  not  suit  the  views  and  purposes  of  our  opponents.  They 
would  not  hear.  Such  an  arbitrament  would  have  placed  the  two 
parties  precisely  on  equal  ground.  But  the  other  side  would  not 
assent  to  it.  It  would  have  precluded  them  from  compassing  their 
object  in  a  temporal  court,  by  a  suit  at  Nisi  Prius,  by  an  intend- 
ment of  law  !  By  the  answer  of  the  committee  of  the  minority  you 
will  readily  perceive  that  they  had  not  yet  consulted  with  the  coun- 
sel learned  in  the  law,  as  they  seem  not  then  to  have  understood 
legal  technicalities,  (see  "  No.  3,  of  the  minority,"  previous  page 
53.) 

"  We  assent,"  say  they,  "  to  the  proposition,  with  a  trifling  altera- 
tion in  the  phraseology."  That  trifling  alteration  had  respect  only 
to  the  words  "remain"  and  "  retain."  They  propose  to  strike  out 
these  words  and  insert  others.  And  why  should  they  be  so  tena- 
cious about  these  words?  They  might  mean  something:  and  be- 
fore what  tribunal?  Why  I  will  tell  you.  Before  a  court  like  this, 
by  intendment  of  law.  Before  "a  Board  of  Arbitrators  with  full 
power  to  settle  finally  the  whole  case  in  all  its  parts,"  they  would 
have  no  influence  on  the  decision.  These  distinctions  would  not 
enter  there.  That  is  the  state  of  feeling  manifested  by  these  two 
parties  in  1837,  and  such  their  views  in  relation  to  the  disposal  of 
these  funds.  There  does  not,  at  first  view,  appear  to  be  much  dif- 
ference. Both  parties  agreed  that  a  division  of  the  church  was  ne- 
cessary. We  proposed  to  carry  it  into  effect  immediately,  and 
they  within  the  next  year  with  the  approbation  of  the  presbyteries. 
Both  parties  agreed  as  to  the  names  by  which  the  two  bodies  should 
be  known  in  future.  They  agreed  that  the  one  should  be  styled 
"the  General  Assembly  of  the  Presbyterian  Church  in  the  United 
States  of  America,"  and  the  other  "the  General  Assembly  of  the 


383 

American  Presbyterian  church."  The  only  difference  was  as  to 
the  phraseology  of  a  single  woid,  and  their  refusal  to  agree  to  ap- 
point a  Board  of  Arbitrators.  I  trust  now  that  you  must  agree 
with  me,  that  they  would  have  refused  to  agree  to  the  proposition 
In  any  language,  that  would  not  allow  them  by  violence  to  seize 
the  whole  of  the  funds  and  property  of  the  church.  I  say  it,  and  I 
say  it  boldly,  that  a  more  just  and  liberal  proposal  than  that  which 
was  made  by  the  Old  School  party,  could  not  have  been  devised. 
I  say  it  now  on  my  own  responsibility,  but  with  no  fear  that  my 
clients  will  retract,  that  if  these  New  School  gentlemen  will  come 
forward  and  agree  to  choose  three  impartial  men  of  other  religious 
denominations  or  of  no  denomination,  to  settle  all  matters  in  con- 
troversy on  the  principles  of  equity,  we  will  bind  ourselves  to  abide 
by  their  decree.  We  will  pledge  ourselves  to  abide  by  such  a  divi- 
sion of  the  property  as  they  shall  direct.  If  our  opponents  will 
accede  to  these  terms  we  will  give  up  every  cent,  if  the  arbitrators 
shall  so  determine.  If  they  take  every  thing,  even  the  Princeton 
Theological  Seminary,  together  with  Dr.  Green's  donation,  if  they 
will  only  agree  to  leave  us  Dr.  Green  himself,  we  will  surrender 
all,  if  such  a  Board  of  Arbitrators  shall  decide  against  us.  We 
will  give  up  every  thing  except  the  doctrines  of  the  church.  What 
the  Old  School  party  were  willing  to  do  in  1837,  they  will  do  now. 
At  this  very  moment  they  will  bind  themselves  to  the  agreement,  if 
the  gentlemen  on  the  other  side  will  only  say  the  word.  They  may 
draw  up  with  the  paper  to  the  table,  and  we  will  sign  it  on  the  spot. 
We  will  abide  the  issue,  and  thus  relieve  both  these  parties  and  the 
whole  church  from  the  scandal  of  these  litigious  proceedings.  We 
are  willing  to  go  farther,  that  all  the  funds  and  Christian  charities, 
so  far  as  the  will  of  the  donors  will  permit,  shall  be  submitted  to  the 
impartial  arbitrament  of  such  a  tribunal  as  I  have  named ;  that  all 
they  have  against  us  may  be  at  once  settled  by  a  pro  rata  allow- 
ance to  each  of  the  respective  parties;  and  we  will  go  even  further 
yet  if  required,  we  will  give  them  every  thing  that  they  have  given 
to  us  and  themselves  whilst  we  were  together. 

I  propose  now,  gentlemen,  to  show  you  what  the  Old  School  party 
have  done,  how  they  have  done  it,  and  by  what  authority  they  have 
done  it.  I  am  aware  that  your  patience  is  nearly  exhausted  by  these 
tedious  details,  and  I  am  almost  ashamed  of  being  obliged  further  to 
tax  your  patience.  But  as  I  hope  not  to  detain  you  long,  I  must  ask 
you  to  accept  this  apology  as  the  only  one  I  have  to  give.  1  will, 
however,  as  a  preliminary,  dispose  of  a  small  matter,  designed  to 
prejudice  you  against  my  clients.  My  learned  friend,  following  his 
instructions,  no  doubt,  alleged  that  the  Old  School  men  came  up 
to  the  Assembly  of  1837  purposing  to  expel  a  large  portion  of 
their  brethren,  in  order  to  secure  to  themselves  a  majority  on  cer- 
tain questions  of  doctrine.  He  assumed  that  they  came  to  this  city 
to  war  against  their  brethren,  that  they  had  framed  a  conspiracy 
thus  to  obtain  the  ascendancy  in  all  future  General  A.ssemblies. 
This  is  a  great  mistake  indeed,  the  very  reverse  of  the  facts.  What 
are  the  real  facts'?  We  already  had  the  majority  in  that  Assem- 
bly.    We  were  the  active  party,  and  made  the  first  proposition  for 


384 

an  amicable  settlement,  by  the  appointment  of  a  joint  committee  of 
five  members  from  each  party.  We  were  powerful  enough  to  con- 
trol all  the  proceedings  of  that  Assembly.  That  committee,  by  our 
proposition,  was  composed  of  both  parties,  and  there  we  renewed 
our  proposition  for  an  amicable  division  of  the  church.  But  as  we 
consulted  our  principles,  we  could  not  see  alike,  and  the  New  School 
party  finally  refused  to  accede  to  any  terms  of  division.  We  were 
thus  driven  to  the  wall,  and  forced  to  adopt  the  acts  of  excision  as 
the  only  alternative  to  rid  the  Presbyterian  church  of  a  most  dan- 
gerous heresy.  May  I  not  rather  say  that  our  opponents  were  the 
conspirators,  when  they  were  professing  to  acquiesce  in  a  division 
of  the  church,  and  yet  could  not  be  prevailed  on  to  agree  to  any 
terms  of  compromise.  But  I  will  not  cast  any  reflection  on  them. 
I  will  rather  suppose  that  the  restoration  of  peace,  by  the  proposed 
division,  failed,  because  the  parties  could  not  see  alike,  and  there- 
fore could  not  agree.  Well,  this  expedient  for  the  restoration  of 
peace  having  failed,  we  tried  another  proposition,  but  with  no  bet- 
ter success  than  before.  And  I  now  refer  to  these  successive 
though  ineffectual  attempts  on  the  part  of  the  Old  School  party  for 
the  purpose  of  showing  the  absence  of  any  covert  design  or  conspi- 
racy on  our  part.  This  proposition,  the  same  which  was  after- 
wards made  by  our  opponents  themselves,  was  for  a  citation  and 
trial  of  those  bodies,  or  judicatures  of  the  church  at  the  bar  of  the 
General  Assembly.  But  strange  as  it  may  appear,  every  New 
School  man  voted  against  it ;  though  they  now  say  that  it  would 
have  been  the  only  constitutional  plan  of  dealing  with  the  recusant 
synods  and  presbyteries,  on  account  of  theit  alleged  apostacy  from 
the  Confession  of  Faith  and  form  of  government  of  the  Presbyterian 
Church.  Though  they  acknowledged  that  a  "diflerence  of  views 
in  relation  to  important  points  of  church  policy  and  action,  as  well 
as  theol<igical  opinion,"  actually  did  exist  to  such  an  extent  as  to 
render  a  division  of  the  church  absolutely  necessary,  and  had 
placed  it  on  the  record,  yet  they  voted  against  the  process  of  cita- 
tion and  trial.  I  hold  in  my  hand  a  printed  list  of  the  "yeas"  and 
"  nays,"  which  proves  that  every  man  who  is  now  a  New  School 
man,  and  was  there  present  in  that  Assembly,  decided  against  it. 
What,  go  to  try  them  by  citing  them  to  the  bar  of  the  General 
Assembly!  They  would  not  submit  to  it;  though  it  was  the 
only  practicable  mode  of  trial  that  could  possibly  be  devised,  the 
only  one  by  which  the  laws  of  the  church  could  be  enforced.  Sup- 
pose these  gentlemen  were  to  be  tried  in  the  inferior  judicatories  of 
the  church,  what  would  be  the  effect?  What  the  result  of  such  a 
trial?  There,  these  gentlemen  who  are  to  try  them,  the  very  men 
■who  claimed  to  sit  in  judgment  in  the  case,  had  already  prejudged 
it.  They  say  that  they  are  not  subject  to  church  censure.  They 
■would  agree  to  nothing  but  what  was  in  accordance  with  their  own 
views.  Who  were  to  try  them  ?  Why  they  themselves,  and  this 
■would  have  been  a  mere  farce  indeed,  as  you  may  well  suppose; 
and  the  General  Assembly  must  ultimately  have  proceeded  to  try 
them.  They  would  then  have  stood  out  and  refused  to  obey  its 
decrees,  and  being  supported  in  their  insubordination,  by  a  power- 


385 

ful  minority  faction,  they  would  have  bid  defiance  to  the  General 
Assen:ibly  itself,  as  they  have  now  done.  Something  like  this  had 
previously  been  experienced  in  the  case  of  a  distinguished  gentle- 
man, Rev,  Dr.  Barnes  of  this  city,  who  had  been  accused  of  heresy 
and  refused  to  submit  to  the  decision  of  his  case  by  the  synod ; 
and  the  synod  was  obliged  to  resort,  in  the  case  of  his  presbytery, 
to  the  alternative  of  dissolving  it.  Dr.  Albert  Barnes  continued  for 
years  to  set  at  naught  the  authority  of  the  Synod  of  Philadelphia, 
and  to  uphold  and  preach  his  heretical  doctrines  and  opinions  in 
defiance  of  the  synod.  The  majority  thus  saw  the  danger  of  being 
entirely  frustrated  in  their  purpose.  They  also  saw  that  even  if 
they  should  not  be  ultimately  foiled  in  their  purpose,  the  difficulties 
would  be  immense  which  they  would  have  to  overcome,  amidst 
the  excitement  and  confusion  of  party  contention,  carried  on  with 
all  the  rancor  and  violence  which  emanate  from  such  proceedings. 
The  Old  School  party  adopted  the  resolutions  which  they  did,  to 
promote  peace  and  prevent  the  disastrous  consequences  which  I 
have  depicted.  The  majority  having  thus  been  foiled  in  their  at- 
tempt at  citation  of  the  four  synods  to  the  bar  of  the  General  As- 
sembly, they  were  compelled  to  resort,  as  the  next  best  mode  of 
proceeding  in  the  case,  to  the  act  of  excision,  so  called.  That  was 
the  only  mode  left  them  by  which  their  purpose  could  be  effected. 
(For  the  resolution  which  was  here  cited  by  Mr.  Preston,  see  that 
numbered  1,  previous  page  56.) 

That  is  the  celebrated  act,  called  "  the  act  of  excision,"  by  which 
these  four  synods  were  declared  to  be  no  part  of  the  Presbyterian 
church,  and  were  thereby  excluded  from  ecclesiastical  connexion 
with  the  General  Assembly  of  said  church.  "  The  Plan  of  Union  of 
1801"  had  previously  been  declared  unconstitutional  and  void  from 
the  beginning,  and  now  it  necessarily  followed  that  all  the  synods 
and  other  bodies  which  had  grown  up  under  it,  fell  with  it  to  the 
ground.  Having  previously  passed  the  act  of  excision,  this  resolu- 
tion merely  declared  the  necessary  consequence  of  the  abrogation  to 
be  that  these  synods,  together  with  the  presbyteries  and  other 
church  judicatories  in  their  connexion,  were  dissolved.  They  were 
so  declared,  (for  the  resolution  was  declaratory  merely,)  but  with 
very  important  reservations,  and  it  is  most  important  that  you, 
gentlemen,  should  pay  particular  attention  to  the  nature  and  cha- 
racter of  those  reservations.  It  is  the  more  imperatively  necessa- 
ry, because  our  opponents  have  endeavoured  to  cause  you  to  believe 
that  this  resolution  was  a  bloody  Draconic  sentence  of  temporal  as 
well  as  spiritual  excommunication,  and  utter  annihilation.  They 
make  a  great  parade  of  words,  as  that  these  brethren  have  been 
turned  out  of  our  communion,  driven  from  the  church  of  their 
fathers,  and  stigmatized  with  heresy.  Now,  there  is  nothing  at  all 
like  this,  except  in  the  excited  and  creative  imaginations  of  these 
gentlemen.  It  was  not  so  intended.  It  did  not  touch  one  single 
elder  or  deacon  in  all  the  wide  extent  of  these  four  synods-  And 
not  only  so,  but  we  carefully  provided  for  each  individual  case,  in 
order  that  their  heads  might  be  effectually  shielded  from  harm. 
Bv  this  resolution  we  did  not  harm  a  hair  of  their  heads.     The  situ- 

33 


386 

ation  of  none  of  them  was  made  a  whit  the  worse.  Not  a  single 
man  of  them  was  made  a  tithe  of  a  single  hair  the  worse  in  conse- 
quence of  it.  As  evidence  of  this  you  need  only  read  the  following 
resolutions.  (See  resolutions  in  continuance  numbered  2,  3,  4,  pre- 
vious pp.  56  and  57.)  Thus  were  preserved  to  every  man  in  the 
Presbyterian  Church  his  rights  in  that  church,  if  he  were  really  a 
Presbyterian,  and  to  every  church  or  presbytery  its  rights,  if 
"  strictly  Presbyterian  in  doctrine  and  order."  Now  what  was  the 
mode  which  they  pursued?  It  had  been  shown  that  these  persons 
who  had  entered  the  church  in  consequence  of  the  adoption  in 
1801,  of  that  unconstitutional  "Plan  of  Union"  had  not  come  into 
the  church  in  a  proper  manner,  that  their  title  to  church  member- 
ship was  defective,  and  they  then  said  to  them,  "  There  is  a  defect 
in  your  title,  and  we  desire  you  to  remedy  that  defect."  Was  there 
anv  thing  wrong  in  this?  Was  it  a  capricious  or  captious  direc- 
tion to  those  gentlemen?  To  bring  it  home  to  you,  gentlemen  of 
the  jury,  it  is  the  same  thing  as  if,  in  an  assembly  of  private  men, 
or  a  corporation  for  banking  or  other  temporal  purposes,  the  title 
of  a  portion  of  the  corporators  should  be  found  to  be  defective, 
and  the  other  corporators  should  say  to  them,  you  cannot  be  ad- 
mitted to  the  privileges  of  the  corporation  until  the  defect  in  your 
title  shall  be  remedied.  The  General  Assembly  of  1837  simply  said 
to  the  members  of  those  four  synods,  (speaking  to  them  as  private 
men,)  "  Your  title  is  defective,  there  is  a  flaw  in  the  instrument  by 
which  your  ecclesiastical  privileges,  in  connexion  with  this  body, 
are  secured.  There  is  a  defective  link  in  the  chain  of  your  title, 
and  you  must  go  and  have  the  instrument  renewed."  The  very 
same  as  if  the  members  of  a  private  corporation  should  say  to  a 
portion  claiming  to  be  members  of  the  corporation,  "  Fellow-corpo- 
rators, we  perceive  that  there  is  an  error  in  the  manner  in  which 
you  were  admitted  to  the  privileges  of  this  corporation,  and  you 
had  better  remedy  the  evil  at  once."  Would,  in  that  case,  the  mem- 
bers be  turned  out  of  the  corporation  ? — would  they  be  deprived  of 
their  rights  by  the  board  of  corporators  saying  to  them,  "  Your  title 
is  defective,  go  and  remedy  it?"  Or,  the  majority  of  the  General 
Assembly  in  effect  said  to  them,  "  Your  judicatories  and  ecclesias- 
tical bodies  were  established  by  mistake.  There  is  an  error  in  the 
mode  of  their  admission  into  the  church.  Still  we  do  not  wish  to 
cut  you  off  entirely  at  one  ruthless  blow.  All  that  we  desire  is  that 
you  should  return  home  and  perfect  your  titles,  for  the  advancement 
of  your  own  happiness  and  the  peace  of  the  church."  "  We  do  not 
accuse  you.  The  defect  in  your  title  was  no  doubt  an  undesigned 
defect.  It  is  illegal,  however,  and  as  such  must  be  remedied. 
We  do  not  say  that  you  must  be  turned  out  of  the  church.  We  do 
not  desire  that  you  should  be  turned  out  if  you  are  really  Presbyte- 
rians. Go  home  and  remedy  your  title,  and  then  come  back,  all 
of  you  that  are  purely  Presbyterian  in  doctrine  and  order,  to  the 
next  General  Assembly,  and  we  will  take  proper  order  thereon." 
Was  there  any  thing  unjust  in  that,  to  require  of  them  to  remedy 
their  title?  Even  if  we  were  wrong,  can  you  suppose  that  we  had 
uiny  evil  design  in  thus  resolving  them  back  into  their  original  ele- 


387 

ments,  in  onder  that  they  might  be  regularly  constituted,  in  the  pro- 
per constitutional  manner  and  form ;  in  saying  to  them,  We  have 
discovered  that  your  title  is  defective ;  go  and  remedy  that  defect, 
and  then  come  back  again,  according  to  the  prescribed  plan,  and 
prove  yourselves  to  be  purely  Presbyterian  in  doctrine  and  order, 
and  we  will  receive  you  ?  Our  arms  are  open  to  receive  every 
one  who  will  furnish  us  with  the  evidence  that  he  is  a  Presbyte- 
rian. 

The  gentlemen  tell  us  that  all  the  presbyteries  belonging  to  the 
four  synods  were  regularly  constituted.  What  then  prevents  them 
from  complying  with  the  requisition  of  the  General  Assembly  of 
1837,  by  joining  themselves  to  other  synods?  Nothing  but  iheir 
own  obstinacy,  unless  it  is  that  they  are  not  Presbyterians.  Let 
them  come  and  show  that  they  are  "  strictly  Presbyterian,"  and 
they  will  be  admitted.  But  they  cannot  do  this.  It  is  impossible 
for  them  to  do  it.  They  can't  say  that  they  are  Presbyterians. 
They  say  "We  won't  do  it;"  but  they  can't  do  it.  Many  of  them 
do  differ  from  us  in  matters  of  faith  by  their  own  acknowledgment^ 
and  those  who  do  not  may  at  any  time  return  to  our  church.  The 
mode  by  which  they  can  do  this  has  been  clearly  pointed  out,  and 
I  would  appeal  to  you,  is  it  a  Christian-like  proceeding  on  their 
part  to  raise  all  this  clamour,  under  the  pretext  that  they  had  been 
excluded  from  the  church  when  the  door  is  open  by  which  all  who 
are  really  Presbyterians  may  enter  freely  and  without  restraint  ? 
But  they  say  to  us,  "  We  will  stand  back,  we  will  not  degrade  our- 
selves by  returning  to  the  church  in  the  manner  you  have  pre- 
scribed. We  will  not  say  that  we  are  Presbyterians.  We  scorn 
to  submit  to  your  requisitions.  If  Presbyterians  were  as  thick  as 
blackberries  amongst  us  we  will  not  give  you  one  of  them  by  com- 
pulsion." They  cannot  say  that  they  are  Presbyterians,  much  less 
prove  it.  Rely  upon  it,  gentlemen,  such  is  the  mode  which  was  pro- 
vided by  the  Old  School  party,  for  the  restoration  of  all  those  Pres- 
byterians within  the  bounds  of  the  four  synods,  who  complain  of 
having  been  cut  off,  and  such,  gentlemen,  is  the  temper  which  has 
been  manifested  by  these  parties  in  regard  to  what  was  proposed 
to  be  effected  by  the  measures  of  1837.  That  the  situation  of  those 
four  synods  be  not  misunderstood,  I  will  again  state  that  they  came  in 
under  the  Plan  of  Union,  and  they  were  merely  dissolved  in  order 
that  they  might  be  organized  again  as  speedily  as  possible  on  true 
Presbyterian  ground.  Their  constituencies  were  merely  resolved 
into  their  original  elements,  that  those  elements  might  become  again 
united,  and  form  regularly  organized  presbyteries  and  synods.  Does 
not  this  appear  to  you,  gentlemen,  as  a  most  outrageous  infringe- 
ment of  their  rights?  Does  it  not  display  a  most  violent,  lawless, 
diabolical  and  vindictive  temper? 

Now,  may  it  please  your  honour,  I  will  enter  into  the  inquiry, 
what  power  had  the  General  Assembly  to  do  this?  This  will  in- 
clude a  consideration  of  the  nature  and  design  of  the  Plan  of  Union 
which  has  been  so  much  talked  of.  In  the  year  1837  the  New 
School  party  appealed  to  the  "  Plan  of  Union  of  1801,"  as  a  justi- 
fication of  their  proceedings.     The  churches  of  which  those  pres- 


388 

byteries  and  synods  were  composed,  had  many  of  them  been  ad- 
mitted originally  by  virtue  of  that  plan,  and  others  continued  to  be 
formed  in  the  same  way  up  to  the  time  of  the  excision,  and  even 
since  that  time.     This  was  declared  by  both  parties;  and  we  say 
that  their  excision  was  the  legitimate  consequence  of  the  repeal  of 
that  plan.     When  the  Plan   of  Union  between  Presbyterians  and 
Congregationalists  in  the  new  settlements  was  adopted  in  1801,  the 
large  tract  of  country  now  embraced  within  the  bounds  of  the  four 
synods  was  principally  a  wilderness.     Then  the  settlements  on  this 
frontier  were  few  and  scattering.     That  tract  of  country  was  not 
then  filled  with  the  busy  hum  of  men,  but  an  untamed  forest,  except 
perhaps,  a  few  scattering  hamlets  and  wigwams.     Scarcely  a  single 
trace  of  civilization  was  there  to  be  found.     In  this  situation  it  con- 
tinued nearly  or  quite  down  to  the  period  of  the  last  war.     He  who 
travels  over  that  interesting  section  of  the  country,  at  the  present 
time,  can  scarcely  bring  his  imagination  to  conceive  the  immensity 
of  the  changes  which,  within  the  few  intervening  years,  have  there 
been  wrought  by  the  industry  and  enterprise  of  man.     Well  culti- 
vated farms  now  cover  the  face  of  that  whole  extent  of  country. 
It  is  intersected  with  rail-roads  and  canals,  and  towns  and  cities 
have  sprung  up  as  if  by  magic.     Even  the  cities  of  Rochester, 
Buffalo,  Cleveland  and  numerous  others  now  teeming  with  inhabit- 
ants are,  as  it  were,  but  of  yesterday,  and  date  their  origin  at  a  less 
remote  period  than  the  Plan  of  Union.     Well,  in  the  new  settle- 
ments which  had  begun  to  form  in  that  tract  of  wilderness  country, 
Christians  of  different  denominations  became  desirous  that  the  be- 
nign influence  of  the  holy  religion  of  the  cross  should  be  shed  in  all 
its  effulgence  and  beauty  on  the  wandering  and  migrating  inhabitants 
of  those  widely  extended  forests,  a  heterogeneous  mass  suddenly 
thrown  together,  in  an  irregular  state  of  society.     With  a  view  of 
diffusing  the  means  of  salvation  among  this  mixed  population  the 
Plan  of  Union  was  formed.     Then  the  settlements  were  sparse,  the 
villages  were  small  and  far  from  each  other,  and  the  formation  of 
distinct  churches  by  any  one  denomination  was  impossible.     On 
the  one  side  of  this  new  territory  was  the  Presbyterian  Church  with 
its  centre  at  Philadelphia,  and  on  the  other  was  the  General  Asso- 
ciation of  Connecticut,  composed  of  the  Congregational  Churches 
in  a  considerable  portion  of  New  England.     Lying  between  the 
two,  this  extended  wilderness  was  spread  out  a  spiritual  waste,  into 
which  missionaries  were  from  time  to  time  sent  by  both  ecclesias- 
tical bodies.     The  Presbyterians  and  Congregationalists  were  so 
mingled  together  that  it  was  found  to  be  impossible  to  form  distinct 
churches  of  either  sect.    The  General  Assembly  of  .the  Presbyterian 
Church,  therefore,  on  the  one  side,  and  the  General  Association  of 
Connecticut,  on  the  other,  entered  mutually  in  1801  into  this  agree- 
ment, called  the  Plan  of  Union,  to  meet  the  exigencies  of  the  scat- 
tered population  in  this  new  territory  which  was  situated  between 
them;  the  plan  which  has  so  important  a  bearing  on   this   case. 
Though  originally  suggested  from  Philadelphia,  the  General  Associ- 
ation of  Connecticut  made  the  first  distinct  proposal  of  it  to  the 
General  Assembly.     The  General  Association  of  Connecticut,  being 


389 

nearest  to  the  field  of  missionary  labour,  and  of  course  more  fully 
apprised  of  the  condition  of  those  new  settlements,  sent  delegates 
to  the  General  Assembly  at  Philadelphia  and  proposed  to  the  As- 
sembly the  adoption  of  a  plan,  to  foster  those  churches  which  were 
located  in  the  new  settlements.  This  proposal  for  the  extension  of 
the  holy  doctrines  of  the  gospel,  for  securing  the  blessings  of  peace 
and  harmony,  and  extending  the  sphere  of  the  benign  charities 
of  Christianity,  struck  the  members  of  the  General  Assembly  of  the 
Presbyterian  Church  as  being  both  wise  and  benevolent,  and  that 
body,  which  was  then  newly  organized,  entered  into  the  agreement. 
Thus  the  Plan  of  Union  was  adopted  ;  intended,  however,  for  that 
desolate  region  only.  They  did  not  propose  to  form  in  these  new 
settlements,  for  which  the  provisions  of  the  Plan  of  Union  were  in- 
tended, a  complete  Presbyterian  nor  yet  a  complete  Congregatit)nal 
Church  organization.  It  was  provided,  merely  as  temporary,  that 
the  means  of  public  worship  should  be  afforded  without  the  esta- 
blishment of  any  complete  ecclesiastical  system :  and  it  was  ex- 
pected that  the  two  denominations  would  separate  as  soon  as  they 
should  have  increased  sufficiently  for  an  independent  and  regular  or- 
ganization of  the  members  of  each  sect  separately.  The  plan  autho- 
rized a  Congregational  minister  to  preach  to  a  Presbyterian  assembly 
or  congregation,  and  a  Presbyterian  minister  to  preach  to  a  Congre- 
gational assembly  or  congregation.  It  authorized  a  church  of  either 
denomination  to%ettle  a  pastor  of  the  other.  It  was  appropriate, 
and  adapted  to  the  tract  of  country  for  which  it  was  designed.  Oa 
its  very  face  it  shows  that  it  was  intended  only  for  the  particular 
state  of  society  then  existing  there.  It  provided  for  rehgious  wor- 
ship, in  an  anomalous  form,  neither  Presbyterian  nor  Congrega- 
tional, but  a  mixture  of  both.  As  was  well  argued  on  the  other 
side,  it  obviously  did  not  contemplate  the  formation  of  either  pres- 
byteries or  synods  out  of  these  materials. 

The  General  Assembly  could  not,  by  virtue  of  its  authority  dele- 
gated by  the  presbyteries,  thus  uproot,  undermine  and  destroy  the 
whole  fabric  of  the  Presbyterian  system  of  faith  and  church  govern- 
ment, nor  had  the  fathers  of  the  church  any  inclination  to  do  so.  It 
was  provided  by  the  Plan  of  Union  that  Congregationalists  should 
not  be  governed  by  Presbyterians  nor  Presbyterians  by  Congrega- 
tionalists. For  the  very  moment  thai  we  had  decided  thus,  that 
Congregationalists  should  be  permitted  to  organize  themselves  into 
presbyteries  and  synods  in  connexion  with  the  General  Assembly, 
there  would  have  been  a  dissolution  of  the  Presbyterian  Church  and 
a  reorganization  of  a  new  mass,  something  like  a  mule  would  have 
been  the  offspring  of  this  unnatural  process  of  amalgamation,  inca- 
pable of  continuing  the  succession  of  the  Presbyterian  Church  ;  and 
so  far  as  such  an  amalgamation  has  extended  in  that  section  of 
country,  the  consequence  has  been  the  bringing  into  existence 
churches  of  this  anomalous  and  mulish  character.  When  the  Plan 
of  Union  was  adopted,  they  did  not  intend  that  Presbyterians  and 
Congregationalists  should  unite  together  in  this  unnatural  and  ano- 
malous manner.  But  all  experience  shows  that  the  intention  of  an 
instrument  furnishes  no  security  for  its  practical  effects.     What- 

33* 


390 

ever  its  original  intention,  it  may,  by  intendment  of  law  and  the 
ever-busy  working  of  human  ingenuity,  be  entirely  diverted  from 
the  purposes  intended  to  be  effected  by  it.  Thus  the  framers  of  the 
constitution  of  the  United  States  could  not  foresee  how  that  sacred 
instrument,  intended  as  a  safe-guard  of  liberty,  within  half  a  century 
from  its  date,  would,  by  their  degenerated  sons,  be  perverted  to 
subserve  the  designs  of  demagogues  and  their  deluded  partisans. 
Such  a  thing  could  not  be  anticipated,  and  yet  it  is  emblazoned 
in  broad  characters  on  the  pages  of  American  history.  The  Plan 
of  Union,  as  I  have  said,  was  intended  exclusively  for  the  new  set- 
tlements. Under  the  anomalous  system  of  worship  which  it  pro- 
vided, peace,  order  and  harmony  reigned  for  many  years.  But  it 
was  expected  that  the  inhabitants  would  not,  longer  than  necessity 
required,  continue  to  worship  at  the  same  altar,  and  adhere  to  this 
anomalous  form  of  ecclesiastical  rule  ;  that  wherever  they  were 
sufficiently  numerous  they  would  separate,  and  organize  their  re- 
spective churches  on  secure  ground, that  the  benign  influence  of 
our  holy  religion  would  be  respectively  felt  and  acknowledged  by 
each,  in  subordination  to  its  own  head. 

Gentlemen  of  the  Jury :  I  have  been  submitting  to  you  and  en- 
deavouring to  show  that  the  Plan  of  Union  was  limited  in  its  ope- 
ration as  to  time  by  the  contingencies  of  the  new  settlements.  It 
was  also  limited  as  to  territory,  being  confined  in  its  application  to 
those  settlements  in  the  state  of  New  York.  Both  parties  to  the 
contract,  agreement  or  treaty,  at  all  times  considered  it  as  being 
thus  limited  in  its  operation  to  the  location  and  circumstances  of 
the  new  settlements,  as  I  have  described.  When,  therefore,  the 
limited  time  for  which  the  compact  was  formed  expired,  by  reason 
of  those  regions  becoming  densely  populated,  and  each  denomina- 
tion had  become  able  to  sustain  itself,  the  several  portions  of  those 
mixed  congregations  should  have  segregated  themselves  from  each 
other,  and  formed  distinct  churches,  each  according  to  its  own  pe- 
culiar plan  of  organization  and  administration.  In  other  words, 
the  Plan  of  Union  was  one  of  those  benevolent  schemes  which  have 
been  put  in  requisition  by  the  Presbyterian  Church  for  extending 
the  principles  of  their  religion.  One  of  those  charitable  objects,  in 
the  furtherance  of  which  missionaries  have  been  sent  out  to  various 
portions  of  the  world,  to  Texas,  to  China,  to  the  dominions  of  the 
great  Mogul,  to  the  Sandwich  Islands,  in  short  to  every  country 
where  their  labours  could  be  available  in  spreading  the  means  of 
salvation.  But  as  these  missionaries  remain  connected  with  their 
particular  presbyteries,  so  it  was  intended  that  the  Presbyterian 
ministers  who  were  permitted  to  become  pastors  of  Congregational 
churches,  should,  notwithstanding,  continue  to  belong  to  their  re- 
spective presbyteries. 

Thus  those  mixed  churches  of  an  anomalous  character,  were, 
by  the  Plan  of  Union,  permitted  to  be  formed  on  certain  condi- 
tions, but  with  no  intention  that  the  fundamental  principles  of 
Presbyterianism  should  be  entirely  uprooted,  by  such  mixed  con- 
gregations continuing  in  existence,  after  the  necessity  which  first 
originated  them  should  cease.     It  was  contemplated  that  a  separa- 


;^9i 

tion  should  take  place,  and  that  each  sect  should  give  in  its  allegi- 
ance to  that  church  to  which  it  most  appropriately  helongs.  But 
so  it  happened,  as,  indeed,  it  nriight  have  been  anticipated,  if  the 
subject  had  been  severely  scrutinized,  that  the  sympathies  which 
arose  between  them,  iind  the  relations  in  which  they  became  ac- 
customed to  associate  with  each  other,  in  their  habitual  and  con- 
tinual intercourse,  created  ties  of  affection  and  interest  between  the 
portions  of  the  two  sects  thus  circumstanced,  which  could  not  easily 
be  severed.  It  was  natural  that  they  should  afterwards  feel  in- 
clined to  continue  the  connexions  thus  formed.  Accordingly, 
when  the  time  arrived  for  the  union  to  expire,  it  was  still  continueci. 
And  not  only  so,  they  proceeded  to  establish  regular  ecclesiastical 
organizations.  In  the  first  place,  they  formed  churches  of  this 
semi-Presbyterian  and  Congregational  character,  which  churches 
were  recognized  by  presbyteries  and  synods,  and  even  by  the  Ge- 
neral Assembly  itself.  In  the  next  place,  they  constituted  presby- 
teries, and  they  then  established  synods.  Such  results,  certainly, 
were  never  conterriplated  by  those  who  formed  the  Plan  of  Union. 
They  did  not  thereby  authorize  those  proceedings.  Those  presby- 
teries and  synods  were  not  formed  in  accordance  with  the  provi- 
sions of  the  Plan  of  Union,  for  it  did  not  authorize  the  erection  of 
any  such  bodies. 

But  the  practice  of  associating  together  in  those  anomalous  and 
mixed  churches,  continued  and  extended,  and  the  mixed  and  ano- 
malous presbyteries,  which  were  composed  in  the  whole  or  in  part 
of  such  anomalous  churches,  did  not  conform  to  the  fundamental 
rules  of  either  the  Presbyterians  or  the  Congregationalists.  Though 
they  claimed  the  pri\ilege  of  belonging  to  our  church,  yet  their 
members  were  partly  Congregationalists.  For  as  those  mixed 
presbyteries  ordained  ministers  and  elders,  and  installed  pastors  for 
such  churches  belonging  to  said  presbyteries,  and  they,  as  bishops 
and  pastors  of  these  churches,  belong  to  a  presbytery,  and  partici- 
pate in  ordaining  others  in  a  similar  manner,  the  effect  must  be  ob- 
vious. The  Congregationalist  heresy  encroached,  visibly,  on  the 
fundamental  principles  of  Presbyterianism  in  that  territory  where 
this  state  of  things  existed. 

I  have  said  that  the  Plan  of  Union  did  not  authorize  the  erection 
of  presbyteries  and  synods  of  this  anomalous  and  mixed  character; 
nevertheless,  those  ecclesiastical  organizations  w-ere  established 
under  it.  Though,  in  reality,  the  establishment  of  presbyteries  of 
this  mixed  character  was  not  depending  on  the  Plan  of  Union,  yet 
they  claimed  the  sanction  of  that  Plan  for  such  proceeding,  though 
it  did  not  authorize  it.  No  doubt  can  be  entertained  of  the  exist- 
ence of  numerous  churches  of  this  mixed  character,  in  1837,  esta- 
blished in  the  manner  which  I  have  pointed  out  to  you.  And  not 
only  did  those  mixed  churches  exist,  but  the  majority  of  Congre- 
gations belonging  to  many  of  the  presbyteries,  were  of  this  charac- 
ter. But,  says  the  gentleman,  how  does  it  then  happen  that  they 
were  admitted  as  part  and  parcel  of  the  Presbyterian  Church?  I 
reply,  that  the  attention  of  the  General  Assembly  had  not  been 
called  to  the  subject.     The  Plan  of  Union,  upon  its  front,  allowed 


392 

of  only  a  temporary  indulgence — a  relaxation  of  the  discipline.  Yet, 
as  churches  had  grown  up  and  flourished  under  this  administration 
of  it,  the  General  Assembly  acquiesced,  from  a  hope  that  the  doc- 
trines of  the  Presbyterian  Church  would  be  more  extensively  pro- 
pagated. They  had  not  examined  into  the  matter.  For,  though 
presbyteries  and  synods  were  formed  in  this  way,  yet  the  minutes 
of  the  General  Assembly  show,  that  no  examination  of  the  premises 
was  ever  made.  They  supposed  a  great  good  would  be  efl'ected 
by  the  propagation  of  their  doctrines  amongst  the  members  of  other 
churches.  Such  considerations  as  these,  appear  to  have  wholly 
engrossed  the  thoughts  of  those  fathers  of  the  church.  They 
dreamed  not  of  the  attendant  dangers.  In  the  prospect  of  a  gene- 
ral and  lasting  benefit  to  the  Presbyterian  Church,  and  to  the  Chris- 
tian churches  at  large,  they  winked  at  what  they  considered  but 
trifling  irregularities,  and  the  discipline  was  therefore  relaxed,  in 
obedience  to  the  ordinary  impulses  of  our  nature.  They  did  not 
intend  to  establish  a  precedent,  but  they  could  not  foresee  the  con- 
sequences. They  did  not  perceive  that  they  were  thus  opening  a 
most  dangerous  flood-gate  of  evil,  through  which  a  torrent  of  dis- 
orders have  since  rushed  into  the  very  bosom  of  the  Presbyterian 
Church.  Nevertheless,  they  had,  unawares,  planted  in  their  fruit- 
ful soil,  a  strange  vine,  which  they  watered  with  care,  intending  to 
permit  it  to  grow  outside  the  wall  of  their  ecclesiastical  structure. 
This  parasitical  plant  of  the  wild  vine,  being  suffered  to  grow  un- 
fnolested  on  our  walls,  spread  rapidly,  and  its  branches  soon  twined 
themselves,  and  ran  over  the  wall.  Before  danger  was  apprehended 
from  it,  it  had  insinuated  its  roots  and  tendrils  through  every  nook 
and  crevice,  until  they  had  destroyed  the  cement  which  bound  the 
stones  firmly  and  compactly  together;  they  reached  the  inside  of  the 
ecclesiastical  building,  and  the  fabric  itself  was  threatened  with  de- 
molition, by  the  superabundant  weight  of  the  luxuriant  growth  which 
it  sustained.  But  the  General  Assembly  did  not  perceive  the  exact 
time  to  prune  down  this  exotic  vine,  by  causing  the  discipline  of 
the  church  to  be  rigidly  enforced.  I  am  sorry  that  they  did  not 
perceive  the  danger  earlier  than  they  did.  For,  when  it  was  first 
perceived,  the  whole  building  had  begun  to  totter  to  its  foundation. 
The  mortar  was  gone,,  and  the  very  stones  trembled  in  their  places. 
When  the  alarm  was  first  given,  the  danger  was  so  great  that  it  re- 
quired all  their  strength,  simultaneously  exerted,  to  tear  from  the 
wall  this  vile  vine,  and  to  repair  the  breaches  in  the  wall  itself.  In 
order  to  efiect  this,  they  were  even  under  the  necessity  of  tearing 
down  a  part  of  the  wall,  effectually  to  detach  this  foreign  growth, 
and  save  the  remaining  portions  of  their  structui'e  from  irretrieva- 
ble ruin.  It  was  necessary,  I  say,  to  tear  down  this  exotic,  (which 
grew  so  luxuriously  on  our  soil,  that  nothing  else  could  flourish  near 
it,)  to  tear  it  down,  and  let  it  grow  elsewhere,  if  it  would,  by  itself. 
It  is  a  singular  coincidence,  that,  at  about  the  same  time  when  this 
dangerous  relaxation  of  church  discipline  took  place,  there  was  an 
acquiescence  on  the  part  of  the  General  Assembly  in  other  relaxa- 
tions and  abuses.  About  that  time,  ministers  of  other  sects,  dele- 
o^ates  from  bodies  not  Presbyterian,  were  permitted  to  sit  in  the 


393 

highest  judicatory  of  the  Presbyterian  Church,  and  not  only  allow- 
ed to  participate  in  their  deliberations,  but  even  to  vote  on  any  and 
every  question,  as  if  they  had  been  members  of  presbyteries  in  our 
connexion. 

•  They  were  not  Presbyterians,  and  yet  the  General  Assembly  ad- 
mitted them  to  debate  and  vote.  They,  as  a  representative  body, 
iiad  no  constitutional  power  to  do  this.  But  still  they  did  it.  As 
to  the  acts  of  the  General  Assembly  permitting  these  disorders, 
most  of  them  have  been  long  since  repealed.  And  although  such 
departures  from  Presbyterian  principles  were  wrong,  evidently 
wrong,  and  are  now  fully  acknowledged  to  have  been  wrong,  yet  God 
forbid  that  I  should  censure  them,  that  I  should  call  in  question  the 
wisdom  and  piety  of  those  fathers  in  the  church,  who,  doubtless, 
acted  as  they  deemed  best  under  the  guidance  of  the  clearest  light 
which  they  then  possessed.  Doubtless  they  supposed  that  by  adopt- 
ing the  Plan  of  Union  with  the  Congregationalists  in  1801,  they 
were  by  that  relaxation  of  the  severity  of  Presbyterian  discipline, 
providing  the  means  for  the  advancement  of  religion  in  a  new 
country,  the  churches  in  which  would  thus  be  preserved  from  being 
disintegrated,  until,  at  length,  they  should  entirely  accord  with  the 
symmetrical  arrangement  of  doctrines  and  discipline,  which,  the 
Presbyterian  Church  believes,  is  in  accordance  with  the  example  of 
the  primitive  Christian  Church,  and  which  they  trace  back  to  its 
great  and  original  founders,  the  Apostles. 

It  was  not  until  unpleasant  differences  occurred  in  the  Presbyte- 
rian Church,  which,  during  a  prolonged  period  of  bitter  contention, 
have  continually  brought  the  two  parties  into  collision  with  each 
other,  and  threatened  the  most  disastrous  consequences,  even  the 
final  ruin  of  both  parties;  it  was  net  until  the  experience  of  these 
things  had  proved  what  evils  had  grown,  and  probably  would  grow 
out  of  it,  the  very  fruits  which  had  originated  from  the  Plan  of 
Union,  that  the  attention  of  the  General  Assembly  was  riveted  to 
this  subject.  Much  warm  discussion  was  thereby  elicited,  and  in 
1826  that  Assembly,  which  had  become  divided  into  two  parties  on 
this  subject,  was  deeply  agitated  in  relation  to  it.  In  the  General 
Assembly  of  1831  there  was  a  desperate  and  something  like  a  death 
struggle  between  these  two  parties.  It  was,  indeed,  a  most  despe- 
rate and  violent  contest.  There  the  fires  of  contention  were  kin- 
dled which  threatened  to  consume  the  peace  of  the  whole  religious 
community.  It  might,  without  exaggeration  or  hyperbole,  be  termed 
the  seven  years  war,  for,  during  seven  long  years  thereafter,  the 
same  subject  was  a  continual  and  fruitful  source  of  contention  and 
strife,  until  it  produced  the  scenes  exhibited  in  the  Assembly  of  1838 
in  Ranstead  court,  and  the  scenes  of  which  you  are  witnesses  in 
this  court.  The  evil  should  have  been  earlier  appreciated,  but  when, 
at  length,  it  came  to  be  perceived,  the  Assembly  promptly  took 
measures  for  its  removal. 

Now  one  of  two  things  must  be  perfectly  manifest.  Either  the 
General  Assembly  did  know  at  the  time  the  four  synods  and  the 
presbyteries  which  they  embraced  were  created,  that  they  were 
composed  either  in  the  whole  or  in  the  greater  part  of  mixed  or 


394 

Congregational  Churches ;  or  that  body  did  not  know  that  fact,  and, 
therefore,  took,  it  for  gran.ted,  that  all  those  churches  were  strictly- 
Presbyterian.     If  the  General  Assembly  did  know  it,  and  if  these 
churches  came  in  and  were  received  under  the  plan,  the  plan  itself 
being  unconstitutional,  that  Assembly  which  admitted  any  of  them* 
had  no  right  to  admit  them,  and  therefore,  could  not  bind  themselves 
or  their  successors  by  that  unconstitutional  act.     If  these  churches 
were  not  received  under  the  Plan  of  Union,  if  they  came  in  on  any 
other  ground,  it  must  be  admitted  by  every  person,  that  the  Assem- 
bly had  no  power  to  receive  them,  and  of  course  the  act  of  their 
reception  was  unconstitutional  and  absolutely  void.     The  General 
Assembly   had   no   power   to    receive   Congregational   or   mixed 
churches  into  the  Presbyterian  connexion,  as  the  constitution  pro- 
hibits the  General  Assembly  from  receiving  any  except  Presbyte- 
rian churches.     If  then  they  admitted  them,  knowing  their  charac- 
ter, the  General  Assembly  trampled  on  its  own  rules,  and  on  the 
fundamental  principles  of  Presbyterianism,  and  thereby  dissolved 
the  Presbyterian  Church,  to  which  the  charter  of  incorporation  was 
given,  and  at  the  same  time  formed  a  new  ecclesiastical  establish- 
ment on  the  ruins  of  the  old.     But  if  the  facts  in  the  case  were  un- 
known ;  if  these  churches,  by  the  outward  garb  and  form  of  Pres- 
byterians, deceived  the  General  Assembly,  which  admitted  them 
by  mistake,  no  man  will  pretend  to  say  that  they  had  not  a  right  to 
turn  them  out  again  when  the  falsehood  and  deception  were  detected. 
This  was  then  the  only  legitimate  course,  to  turn  them  out  and  re- 
organize those  portions  which  had  inadvertently  been  organized  in 
an  irregular  manner.     In  every  view  then  which  can  be  taken  of 
the  subject,  the  subsequent  act,  I  mean  the  repealing  act  of  1837, 
was  necessary,  proper,  and  clearly  within  the  jurisdiction  and  con- 
stitutional powers  of  the  General  Assembly.     By  and  by  we  will 
show  you  that  the  General  Assembly  possesses  a  superabundance 
of  power,  more  than  was  necessary  to  effect  that  purpose.     But 
ample  as  are  the  powers  of  the  General  Assembly,  that  body  has 
no  power  to  admit  any  into  its  connexion  except  Presbyterian  mi- 
nisters and  Presbyterian  elders  who  have  been  ordained  for  life. 
There  is  then  no  body  entitled  to  representation  in  the  General  As- 
sembly except  that  body  is  composed  entirely  of  Presbyterian  mi- 
nisters and  elders. 

Who  has  the  right  to  be  represented  in  the  General  Assembly  1 
Not  an  association  of  Congregational  or  mixed  churches,  but  an 
association  of  Presbyterian  churches.  And  that  is  not  a  Presbyte- 
rian Church  which  is  composed  of  Congregaiionalists  or  of  any 
other  than  Presbyterians.  And  what  must  be  the  component  parts 
of  a  Presbyterian  Church  ?  Why  the  pastor  and  the  ruling  elders. 
If  a  church  be  constituted  in  any  other  way  it  is  not  a  Presbyterian 
Church,  no  matter  by  what  name  you  call  it.  Concerning  this  there 
can  be  no  dispute.  A  General  Assembly,  therefore,  cannot  estab- 
lish a  synod  or  presbytery  out  of  any  other  materials  than  Presby- 
terian materials.  It  cannot  constitutionally  admit  into  the  com- 
munion of  the  Presbyterian  Church  any  other  than  Presbyterian 
congregations  and  members  of  Presbyterian  congregations.     The 


395 

exercise  of  such  a  power  would  strike  down  the  whole  Presbyterian 
Church  at  one  blow.  The  admission  into  the  Presbyterinn  Church 
of  others  who  are  not  Presbyterians  is  forbidden  by  the  constitution 
and  laws  of  the  church,  by  the  Confession  of  Faith,  by  the  Cate- 
chisms, and  by  that  eternal  record  which  contains  the  precepts  of  the 
Christian  religion,  the  Bible.  Presbyterians  appeal  to  that  sacred 
record  as  their  foundation,  because  Presbyterianism  cannot  other- 
wise exist.  The  fundamental  maxim  and  principle  of  Presbyterian- 
ism is,  that  the  doctrines  and  forms  of  government  of  the  Presbyte- 
rian Church  are  of  divine  ordination,  and  that  no  human  power  has 
a  right  to  repeal  what  God  has  done.  This  maxim  of  belief  lies  at 
the  very  foundation  of  the  whole  system  of  Presbyterianism.  The 
principles  of  our  faith,  worship,  and  church  government,  came  di- 
rectly from  God,  and  have  been  handed  down  to  us  by  the  .Saviour 
himself.  Such  is  our  confidence  and  belief,  and,  consequently,  we 
maintain  that  they  admit  of  no  alteration  or  repeal  by  any  human 
authority.  They  cannot  be  repealed.  They  allow  of  no  deviation 
from  them.  Speaking  as  I  now  do,  as  the  advocate  of  Presbyteri- 
ans, and  expressing  the  belief  of  Presbyterians,  I  say  that  Presbyte- 
rianism is  an  institution  of  divine  ordination,  established  by  the 
Lord  Almighty  himself,  and  no  human  tribunal  whatever  can  set 
aside  or  abrogate  any  portion  thereof.  They  believe,  that  by  di- 
vine ordination,  presbyteries  must  be  formed  of  Presbyterian  minis- 
ters and  ruling  elders — that  a  synod  must  also  be  constituted  of 
Presbyterian  ministers  and  ruling  elders,  and  that  this  law  of  the 
church  cannot  be  abrogated  or  repealed. 

This  is  the  corner-stone  of  the  Presbyterian  system,  if  not  of 
every  other  system  of  faith.  1  put  myself,  then,  not  only  on  the 
by-laws  of  the  church,  the  rules  of  order,  but  also  upon  the  great,  fun- 
damental law  of  that  church — the  eternal  law  of  that  Holy  Bible. 
It  is  a  fundamental  article  of  the  Presbyterian  Church,  that  Pres- 
byterianism is  of  divine  ordination.  The  whole  Presbyterian 
Church,  which  I  represent,  relies  on  the  Bible,  and  regards  the  New 
Testament  as  a  part  of  her  constitution.  Her  faith  is,  that  God  Al- 
mighty has  established  her,  and  that  her  principles  were  received 
from  his  lips,  and  from  the  inspired  apostles.  Ours  is,  we  believe, 
the  primitive  church — the  true  church — the  holy  apostolic  church, 
— and  he  who  denies  it,  is  not  of  us.  We  say  to  him,  "  We  know 
you  not."  We  say  to  such  men  as  those  whom  we  have  excluded 
from  our  communion,  Congregationalists,  and  representatives  of 
Congregationalisls,  and  mixed  churches,  not  in  the  spirit  of  that 
awful  denunciation  which  has  been  imputed  to  us,  but  in  the  true 
spirit  of  Presbyterianism,  "  We  do  not  know  you;  you  may  be  wise 
men;  you  may  be  good  men;  you  may  even  be  good  Christians; 
but  you  are  not  Presbyterians.  We  do  not  know  you,  and  you  do 
not  know  us.  We  do  not  know  of  what  elements  your  churches 
are  composed.  We  should  not  be  Presbyterians,  if  we  acknow- 
ledged you  or  received  you."  I  am  not  a  Presbyterian.  I  speak 
as  a  lawyer,  and  I  have  been  stating  the  belief  of  those  whom  I  re- 
present, and  not  my  own.  I  am  an  Episcopalian,  and  you  are  a 
Roman  Catholic.     Can  the  Presbyterian  Church  admit  us  into  her 


396 

communion?  So  soon  as  she  should,  she  would  cease  to  be  a 
Presbyterian  Church.  Instead  of  this,  it  would  become  an  anoma- 
lous amalgamation  of  different  sects  and  denominations.  It  would 
be  unlike  any  of  its  component  parts,  unlike  any  thing  else  in  exist- 
ence. And  what  is  to  prevent  any  member  of  a  mixed  church, 
composed  in  this  manner,  from  claiming  the  rights  and  privileges 
of  either  sect?  Nay,  further,  what  is  to  prevent  such  a  church  from 
usurping  the  privileges  and  immunities  of  all  the  sects  in  Christen- 
dom I  iSuch  a  member  may  be  either  a  Presbyterian  or  a  Congre- 
gationalist,  or  neither,  or  both,  as  may  happen  to  suit  his  fancy. 

If  you  proceed  to  try  him,  by  citing  him  to  appear  before  the 
presbytery,  to  answer  a  charge  of  misdemeanor,  or  for  heresy,  he 
may  hold  up  the  Plan  of  Union,  and  claim  to  be  a  ('ongregational- 
ist.  And  if  the  congregation  of  which  he  is  a  member  should 
commence  a  process  against  him,  he  might  then  claim  to  be  a 
Presbyterian.  He  is,  in  reality,  an  anomaly  in  the  creation,  a  sort 
of  a  man-bat,  flying  to  and  fro  in  the  twilight;  and,  though  between 
the  two,  bearing  affinity  to  neither  the  beasts  nor  the  birds. 

Now,  gentlemen,  there  is  another  view  of  the  Plan  of  Union, 
which  I  have  not  disposed  of.  I  do  not  mean  to  contend  that  the 
plan  was  not  just  and  proper.  It  may  not  have  been  improper, 
under  the  circumstances.  If  the  Presbyterian  Church,  after  care- 
fully viewing  certain  circumstances,  judged  it  best  to  grant  a  dis- 
pensation from  church  censure,  in  certain  cases,  which  before 
would  have  subjected  the  member  or  party  engaging  therein  to 
such  censure,  it  may  have  been  perfectly  right,  and  justifiable  by 
the  dictates  of  wisdom  and  prudence.  It  met  this  exigency,  and 
nothing  more,  that  Presbyterians  and  Congregationalists  might  as- 
sociate together  in  the  new  settlements,  without  becoming  liable  to 
church  censure,  which  they  would  have  been  if'the  Plan  of  Union 
had  not  been  adopted.  But,  when  Congregationalists  came  in  under 
that  Plan,  and  claimed  to  be  members  of  the  Presbyterian  Church, 
when  they  thus  claim  to  be  a  portion  of  the  church  itself,  to  take 
part  in  the  proceedings  of , the  tribunals  of  the  church,  and  when 
the  judicatories  of  the  church  shall  be  composed  of  such  elements, 
the  question  then  arises,  whether  the  admission  of  such  persons  into 
the  very  bosom  of  the  church,  was  in  accordance  with  the  funda- 
mental laws  and  principles  of  Presbyterianism  ?  Presbyterians  be- 
lieve, that  no  Presbyterian  Church  can  exist  without  an  order  of 
church  officers  called  ruling  elders.  But  can  they  proceed  to  try 
a  Congregational  Church,  which  has  no  ruling  eiders,  for  being 
without  them  ?  Well,  suppose  they  undertake  to  try  one  of  those 
anomalous,  or  mixed  churches  ?  How  can  they  proceed,  but  by 
bringing  the  matter  before  a  committee  of  the  said  congregation, 
composed  of  one-half  Presbyterians  and  the  other  half  Congrega- 
tionalists? What  would  this  be,  but  solemn  mockery?  "Why!" 
the  Congregationalists  would  reply  to  the  charge — "  we  do  not 
believe  in  the  divine  ordination  of  ruling  elders;"  and  there  would 
be  an  end  of  the  chapter,  so  far  as  that  tribunal  was  concerned. 
How  could  the  General  Assembly  proceed  to  try  these  men,  and 
for  what?     For  not  having  in  their  churches  regularly  ordained 


397 

elderships,  when  they  do  not  acknowledge  the  ordination  of  elders 
to  be  of  divine  appointment?  They  would  exclaim,  that  ii  was  a 
violation  of  the  common  law,  though  they  did  not  come  in  by  com- 
mon law,  and  you  can't  try  them  by  common  law.  If  you  try 
ihem  by  any  species  of  law,  either  common  or  uncommon,  eccle- 
siastical or  civil,  for  not  being  Presbyterians — if  you  convict  them 
of  the  charge,  these  New  School  Congregationalists  will  say  "you 
shall  not  turn  us  away,  you  did  not  prove  it  by  an  intendment 
of  law."  Thus,  your  whole  ecclesiastical  jurisdiction  rests  on  an 
intendment  of  law.  Throughout  the  whole  atfair,  it  is  necessary  u> 
proceed  on  the  presumption  that  the  facts  are  otherwise  than  ihev 
really  are;  and,  pro  hac  vice,  in  order  to  try  them  for  not  being  mem- 
bers of  the  church,  you  must  consider  them  to  be  members. 

In  order  to  prove  that  they  are  not  Presbyterians,  you  m;ist  ac- 
knowledge that  they  are  Presbyterians.  If  I  have  not  placed  this 
matter  right,  it  must  be  because  the  gentlemen  have  not  been  able 
to  give  me  their  assistance.  But  the  General  Assembly  is  a  quasi 
corporation,  and  as  such,  had  not  power,  by  the  Plan  of  Union,  or 
otherwise,  to  admit  Congregationalists  into  the  Presbyterian  Churcii, 
as  that  would  be  a  violation  of  the  act  of  incorporation. 

We  come,  now,  to  the  position  suggested  in  the  course  of  an 
argument  on  the  admission  of  certain  testimony  in  this  case,  that, 
from  the  tenor  of  the  act  of  incorporation,  the  introduction  of  anv 
admixture,  other  than  Presbyterianism,  is  against  the  integrity  of 
the  incorporation.  The  act  of  incorporation  does  not  recognize,  or 
admit  of  mixed  synods  and  presbyteries  being  in  connexion  with 
the  General  Assembly,  but  it  is  confined  in  its  operation  to  the 
Presbyterian  church,  a  church  which  is  governed  by  ministers  and 
ruling  elders.  The  "  Act  of  the  Pennsylvania  Legislature,  incorpo- 
rating the  Trustees  of  the  Ministers  and  Elders  of  the  Presbyterian 
Church  in  the  United  States  of  America,"  we  contend,  was  granted 
to  the  Presbyterian  Church,  to  a  church  composed  of  Presbyterians 
only,  and  without  any  intermixture  of  Congregationalists,  or  anv 
other  sect.  It  was  not  granted  to  a  General  Assembly,  cotnpose'd 
in  the  whole,  or  in  part,  of  committee  men,  or  their  representatives. 
The  words,  '•  ministers  and  elders,"  are  repeated  in  that  act  over 
and  over  again,  and  the  language  of  the  said  act  was  intended  to 
conform  to  the  fact.  Now  what  comes  of  your  modern  Congrega- 
tional Presbyterians,  or  Presbyterian  Congregationalists?  Your 
committee  men,  and  their  representatives?  They  may  hold  up  the 
Plan  of  Union  as  long  as  they  please,  but  if  the  Plan  of  Union  ad- 
mitted any  one  else  than  Presbyterians  into  the  General  Assembly, 
it  was  unconstitutional,  and  consequently  a  violation  of  the  charter 
of  incorporation,  and  the  corporation  might  have  been  proceeded 
against  by  a  writ  of  quo  vmrranto.  Suppose,  for  instance,  the  Gene- 
ral Assembly  of  the  Presbyterian  Church  should  agree  to  a  Plan  of 
Union  with  all  other  sects  and  denominations,  bringing,  under  the 
broad  wing  of  her  charter  of  incorporation,  one  and  all  Christian  pro- 
fessions. Could  they  hold  property,  or  other  privileges,  under  the 
charter?  Did  the  legislature  of  Pennsylvania  grant,  or  intend  to 
grant  that  act  of  incorporation  to  all  the  religious  sects  and  deno- 

34 


398 

minations  in  the  whole  of  Christendom?  Or  was  that  charter  given 
to  Presbyterians  only?  It  completely  separates  them  from  all  the 
other  sects.  That  charter  was  granted  to  none  but  ministers  and 
elders.  It  was  exclusively  confined  to  them,  and  he  who  intro- 
duces any  others  to  the  enjoyment  of  its  privileges,  violates  both  the 
letter  and  the  spirit  of  the  charter.  I  do  not,  however,  say  that  a 
mistake,  merely,  involved  such  serious  consequences  as  the  utter 
forfeiture  of  the  charter.  A  position  on  this  subject,  to  which  I  al- 
luded in  an  earlier  stage  of  these  proceedings,  was  ratiier  the  sug- 
gestion of  one  of  my  colleagues,  than  my  own,  and  to  whatever 
consideration  it  may  be  entitled,  I  do  not,  in  the  present  aspect  of 
the  case,  deem  it  necessary  to  press  it  here.  I  do  not,  therefore,  at 
present  wish  to  be  understood  as  saying,  that  because  the  General 
Assembly  passed  an  unconstitutional  act  in  1801,  thai  the  proceed- 
ings of  all  the  General  Assemblies  which  have  been  held  subse- 
quently to  that  time,  have  been  utterly  nugator}'  and  void.  They 
were,  perhaps.  General  Assent blies  de  facto,  though  not  de  jure. 
The  Congress  of  the  United  States,  a  few  years  since,  refused  to 
renew  or  continue  the  charter  of  the  Bank  of  the  United  States,  and 
the  renewal  of  its  charter,  as  many  of  you  well  know,  was  defeated 
principally  through  the  agency  of  those  who  opposed  it,  on  account 
of  the  real  or  supposed  unconstitutionality  of  the  act  of  incorpora- 
tion. Yet  no  person  ever  yet  pretended,  that  all  the  acts  of  the 
corporation,  all  the  transactions  of  that  bank  were  nugatory  and 
void.  Or,  to  bring  to  your  notice  a  still  stronger  instance,  there 
was  a  set  of  acts  passed  by  the  American  Congress,  about  forty 
years  ago,  termed  the  Alien  and  Sedition  Laws,  and  the  commu- 
nity, generally,  appears  to  have  settled  down  in  the  belief  that  those 
laws  were  unconstitutional.  Yet  no  one  ever  dreamed  of  regard- 
ing them  as  null  and  void,  whilst  they  were  in  existence.  All  acts 
done  in  execution  of  them,  were  considered  to  be  valid.  The 
power  to  repeal  those  laws  was  nowhere  to  be  found  but  in  Con- 
gress, and  the  power  to  declare  them  unconstitutional,  and  conse- 
quently void,  existed  nowhere  but  in  the  supreme  judiciary  of  the 
United  States.  They  had  their  day — and  now,  on  all  sides,  the 
Alien  and  Sedition  Laws  are  viewed  as  having  been  unconstitu- 
tional ;  yet  two  men,  at  least,  were  imprisoned  and  fined  for  viola- 
tions of  those  very  laws.  For  though  there  is  no  man  in  either 
house  of  Congress,  who  would  advocate  the  re-enactment  of  those 
obnoxious  laws,  yet  so  long  as  they  existed,  they  were  the  law  of 
the  land,  and  acquiesced  in,  as  such,  by  the  people. 

Now,  gentlemen,  I  have  a  few  words  to  say  in  relation  to  the 
acts  of  the  corporation,  or  quasi  corporation  if  you  prefer  the  term. 
As  regards  the  acts  of  the  corporation,  so  far  as  they  involved  the 
admission  to  the  rights  and  privileges  of  the  corporation,  of  any  other 
than  ministers  and  elders  of  the  Presbyterian  Church,  those  acts 
were  absolutely  null  and  void  to  all  intents  and  purposes.  Because 
the  General  Assembly  does  not  possess  the  power  as  a  quasi  corpo- 
rate body  to  transfer  its  corporate  privileges  to  another.  They 
cannot  divest  themselves  and  impart  to  others  the  franchise  which 
the  legislature  granted  to  them.     At  the  moment  that  should  be 


399 

attempted,  the  corporate  powers  of  the  General  Assembly  would 
revert  to  the  legislature  by  forfeiture.  The  General  Assembly 
would  thus  cease  to  be  that  General  Assembly  for  which  the  act  of 
incorporation  provides.  The  legislature  granted  the  franchise  of 
the  corporation  to  us  as  Presbyterians,  and  not  to  Congregational- 
ists  and  committee-men.  It  would  therefore  be  a  violation  of  the 
trust  reposed  in  the  General  Assembly,  to  admit  Congregationalists 
or  deacons  to  the  enjoyment  of  the  corporate  privileges  of  that 
body.  The  legislature  contemplated  "  ministers  and  elders"  only, 
and  not  even  all  ministers  and  elders,  but  ministers  and  elders  of 
the  Presbyterian  Church  and  not  any  others.  If,  therefore,  any 
church  or  congregation  not  belonging  to  the  Presbyterian  con-, 
nexion  or  communion,  should  designate  its  officers  as  pastors  or 
ministers  and  elders,  those  officers  could  not  be  admitted  to  a  par- 
ticipation of  the  benefits  and  franchises  of  the  corporation,  because 
though  they  would  be  known  by  the  general  appellation  of  "  minis- 
ters and  elders,"  they  would  not  be  "  ministers  and  elders  of  the 
Presbyterian  Church."  If  the  legislature  had  intended  to  confer 
those  corporate  privileges  on  deacons,  the  name  of  deacons  would 
have  been  introduced  into  the  charter  of  incorporation.  If,  there- 
fore, any  of  these  should  be  admitted  to  partake  of  the  benefits  of 
the  corporate  franchise,  the  act  of  admitting  them  would  be  not 
only  wrong  in  itself,  but  in  derogation  of  the  charter  of  incorpora- 
tion. It  would,  by  admitting  officers  or  others  of  a  different  cha- 
racter from  those  contemplated  in  the  act  of  incorporation,  have 
vitiated  the  corporate  power  of  the  General  Assembly.  The  act, 
then,  by  which  such  members  were  admitted,  was  wrong  in  itself, 
as  the  admission  of  Congregationalists  under  any  pretext  was  a  vio- 
lation of  the  act  of  incorporation.  I  do  not  say  that  the  Plan  of 
Union  was  wrong  in  itself.  That  may  be  controverted.  But  I  do 
say  that  the  General  Assembly  had  a  right  to  repeal  it,  whether  it 
were  right  or  wrong  in  itself,  because  it  was  only  an  act  of  the 
General  Assembly.  The  repeal  of  the  Plan  can  be  justified  by  the 
General  Assembly  without  admitting  that  it  originally  did  wrong. 
Whether  it  was  right  or  wrong,  the  General  Assembly  could  repeal 
it  at  any  time.  And  whenever  it  was  repealed,  the  whole  fabric 
which  had  been  reared  on  it,  must  of  necessity  fall  to  the  ground, 
and  there  must  be  a  re-organization. 

[One  of  the  opposite  counsel  here  inquired,  "  Do  you  mean  to  say 
that  such  a  re-organization  took  place  in  1837?"] 

Mr.  Preston  resumed,  "I  did  not  specify  any  time." 

[The  court  inquired  if  the  General  Association  of  Connecticut 
had  ever  consented  to  the  repeal.  And  was  answered  that  an  over- 
ture requesting  their  consent  had  been  sent  to  that  association,  by 
the  General  Assembly  of  1835,  but  no  answer  had  ever  been  re- 
turned.] 

The  only  point  of  view  in  which  the  constitutionality  of  the  Plan 
of  Union  can  be  at  all  supposed,  is  its  being  established  for  tempo- 
rary purposes,  and  that  it  was  intended  to  operate  only  among  those 
in  the  new  settlements,  amongst  the  wild  inhabitants  of  a  measura- 
bly uncultivated  wilderness,  and  not  to  admit  any  except  Presbyte- 


400 

rians  to  exercise  power  and  influence  in  the  church.  It  was  an  acC 
of  the  General  Assembly;  and  as  such,  if  it  were  an  act  of  legis- 
lation and  intended  to  be  permanent,  and  to  interfere  with  the  es- 
tablished Presbyterian  organization  in  any  of  the  church  judicato- 
ries, it  was  evidently  unconstitutional,  as  altogether  transcending 
the  powers  of  the  Assembly;  and  if  not,  though  its  unconstitution- 
ality could  not  be  urged,  yet  if  a  wrong  construction  produced  such 
an  interference  with  established  principles,  it  was  such  an  abuse  as 
the  General  Assembly  had  a  right  to  rectify.  The  power  was  in 
the  church,  and  consequently  in  the  highest  church  judicatory,  the 
General  Assembly,  which  possessed  within  itself  the  legislative  ju- 
dicial and  executive  powers.  Such  a  power — the  power  to  repeal 
a  former  act,  is  absolutely  necessary  to  the  existence  of  a  delibera- 
tive body.  Or  if  it  were  to  be  regarded  as  a  treaty,  with  a  foreign 
power,  then  the  General  Assembly  is  endowed  with  the  treaty- 
making  power,  even  that  high  power  which  is  over  all  law  and 
paramount  to  all  other  powers  of  government,  that  high  power 
which  nothing  less  than  the  supreme  tribunal  can  exercise.  This 
supreme  power  includes  the  power  of  excinding  every  thing  at 
pleasure.  The  point  of  view,  however,  in  which  I  regard  the  Plan 
of  Union,  is,  that  it  was  declaratory  of  what  should  be  admitted  in 
the  intercourse  between  Presbyterians  and  Congregationalisls  in  the 
new  settlements,  and  that  whilst  its  operation  was  confined  to  the 
purposes  for  which  it  was  originally  intended,  it  did  not  interfere 
with  the  established  order  of  the  Presbyterian  Church.  But  when, 
according  to  their  construction  of  it,  it  did  interfere,  the  highest 
ecclesiastical  tribunal,  the  supreme  judicatory  of  the  church,  had  a 
right  to  repeal  it.  My  proposition  is  that  the  act  was  not  so  intend- 
ed to  be  construed,  because  such  a  construction  is  contrary  to  the 
fundamental  principles  of  the  Presbyterian  Church,  and  also  to  the 
act  of  incorporation,  and  that  such  construction  did  admit  improper 
persons  into  the  church  there  can  be  no  doubt  entertained  ;  we  had 
therefore  the  right  to  repeal  it. 

But  an  idea  has  been  intimated,  that  these  presbyteries  and 
synods,  or  the  congregations  entering  into  their  structure,  had, 
under  this  act,  acquired  certain  rights.  That  the  act  is  in  the  na- 
ture of  a  contract  or  treaty  involving  the  creation  of  vested  rights, 
and  that  it  could  not  therefore  be  repealed  by  the  Assembly.  Well, 
if  the  Plan  of  Union  were  in  the  nature  of  a  treaty  or  contract,  de- 
pending on  circumstances  existing  at  the  time  the  contract  was 
made,  which  circumstances  afterwards  ceased  to  exist,  or  were  so 
far  changed  as  to  invalidate  the  said  treaty  or  contract,  we  had  a 
right  to  repeal  it:  and  the  consequence  of  the  repeal  was,  as  before 
stated,  that  every  thing  which  was  depending  on  it  fell  to  the  ground 
with  the  repeal  of  the  plan.  This  is  the  fact,  unless,  as  intimated, 
certain  inalienaf)le  rights  had  accrued  from  the  instrument,  being 
in  the  nature  of  a  contract,  and  a  quid  pro  quo  having  passed  be- 
tween the  parties,  those  rights  being  in  the  nature  of  vested  rights, 
which  of  course  are  unalienable.  They  contend  ihat  the  Phm  of 
Union  of  1801  was  a  contract  of  this  kind,  and  that  they  inherited 
the  vested  right  to  enjoy  all  the  privileges  of  the  corporators.     Let 


401  / 

us  examine  this  point  for  a  moment.  In  the  first  place,  we  contend 
that  the  act  did  not  authorize  that  of  which  we  complain;  and 
they  must  show  that  there  are  rights  of  the  respective  parties  which 
accrued  to  them  in  and  by  virtue  of  the  compact  entered  into  be- 
tween Presbyterians  and  Congregationalists  in  1801,  and  they  must 
further  show  that  by  virtue  of  that  act  those  presbj'teries  and 
synods  were  established,  and  that  the  .rights  of  the  two  parties, 
whatever  they  were  or  are,  accrued  to  them  in  virtue  thereof. 
But  was  the  Plan  of  Union  a  compact  or  agreement,  or  any  thing 
like  a  contract  between  the  two  parties,  from  which  vested  rights 
could  accrue?  There  is  and  was  no  compact  between  these  pres- 
byteries and  synods,  and  the  General  Assembly.  The  Assembly 
has  an  appellate  jurisdiction  from  them,  but  each  of  these  judicato- 
ries is  dependent  on  the  fundamental  laws  of  the  church,  and 
though  strong  connecting  links  bind  them  together,  yet  there  is 
nothing  like  an  obligatory  contract  between  them.  We  have  courts 
of  law,  of  appellate  jurisdiction.  But  can  you  perceive  any  con- 
tract between  them,  and  the  lower  courts? 

Your  Honour  has  not  entered  into  a  contract  with  any  of  the 
inferior  courts  of  the  state  over  which  this  court  may  have  appel- 
late jurisdiction.  On  the  other  hand,  the  court  in  Bank  may  review 
the  decision  of  this  court  sitting  at  J\lsi  Prius,  but  there  is  no  con- 
tract between  the  two.  The  inferior  courts  of  law  are  in  their 
organization  independent  of  this  court,  though  they  are  dependent 
as  regards  its  appellate  jurisdiction.  These  several  courts  derive 
their  existence  and  their  prescribed  powers  from  the  legislature  in 
accordance  with  the  constitution,  but  there  is  no  contract  between 
the  several  courts  and  the  body  which  formed  them.  They  are 
entirely  independent  even  of  the  legislative  tribunal,  and  of  each 
other,  except  as  regards  an  appellate  jurisdiction.  So  the  presby- 
teries and  synods  are  independent  of  the  General  Assembly,  except- 
ing so  far  only  as  the  General  Assembly  is  an  appellate  ecclesiasti- 
cal court.  As  in  the  one  case,  the  inferior  courts,  so  in  the  other, 
the  presbyteries  and  synods  have  no  vested  rights,  because  their 
being  in  submission  to  each  other  is  not  by  compact.  They  all  pro- 
ceed on  the  fundamental  principles  of  the  laws  and  the  constitution, 
and  not  by  contract.  But  it  may  be  said,  that  having  introduced 
these  men  into  the  Presbyterian  Church,  the  General  Assembly  has 
no  right  to  turn  them  out.  But  this  is  not  so,  they  came  in  by  a 
mistake,  and  we  only  say  to  them,  "  Gentlemen,  you  were  admitted 
by  mistake;  if  you  please,  a  mutual  mistake  between  us  and  you, 
and  that  mistake  must  be  rectified  as  easily  as  possible.  But  you 
shall  not  be  hurt.  We  will  put  you  to  no  trouble  about  it.  You 
shall  not  lose  your  standing  in  the  church  on  that  account.  But 
you  must,  in  consequence  of  this  mistake,  re-organize  your  church 
judicatories.  Your  title  must  be  renewed  and  recorded  afresh." 
Having  clearly  the  right  to  repeal  the  Plan  of  Union,  we  did  repeal 
it,  and  when  it  was  repealed,  the  four  synods,  together  with  their 
constituent  presbyteries  and  churches  which  had  been  introduced 
in  contravention  of  the  constitution,  and  which  depended  on  that 
plan  for  their  support,  of  necessity  fell  to  the  ground,  or  at  least  fell 

34* 


402 

off  from  us.  But  it  was  the  part  of  wisdom  in  the  General  Assem- 
bly to  devise  a  plan,  and  accordingly  that  body  did  so ;  a  wise  and 
prudent  plan,  by'which  the  sciUtered  fragmentary  portions  of  those 
lour  synods  might  be  collecied  together  again,  and  by  which  they 
may  yet  become  resuscitated  and  re-organized. 

But  I  contend  that,  independently  of  any  considerations  relative 
to  the  Plan  of  Union,  the  General  Assembly  had  the  inherent  power, 
for  its  own  reasons,  to  dissolve  any  synod  and  any  presbytery  in. 
its  connexion.  The  General  Assembly  may  strike  from  existence, 
destroy,  annihilate  any  synod  or  presbytery  without  assigning  any 
reason  for  the  exercise  of  that  power.  It  would  be  a  work  of  su- 
pererogation to  enter  into  an  investigation  of  the  motives  which 
influenced  the  members  of  that  body  in  their  decision.  We  con- 
tend that  the  General  Assembly  possesses  this  essential  power,  a 
power  which  is  wholly  discretionary,  and  for  the  exercise  of  which 
neither  the  Assembly  nor  the  members  are  responsible,  except  to 
their  own  discretion.  In  the  course  of  the  argument  on  the  other 
side  it  has  been  contended  that  the  power  of  the  General  Assembly 
over  the  inferior  judicatories  of  the  church,  extends  only  to  the  trial 
of  cases  which  are  brought  before  it  by  appeal ;  in  other  words,  that 
its  powers  are  not  legislative,  but  judicial  only.  So  far  from  that,  the 
powers  of  the  General  Assembly  are  strikingly  analogous  to  the 
DOwers  of  the  Senate  of  the  United  States,  which  exercises  legisla- 
tive, executive,  and  judicial  functions,  and  is  also  the  depository  of 
the  treaty-making  power.  It  has  been  supposed  that  all  these  pow- 
ers of  government  can  never  wisely  co-exist  in  the  same  tribunaK 
But  they  are  co  existent  in  the  Senate  of  the  Un  ed  Siates,  and 
wisely  or  unwisely,  I'll  show,  and  that  most  conclusively,  that  they 
do  co-?xist  here,  and  that  the  General  Assembly  has  also  constitu- 
tional powers  superadded.  It  has  not  indeed  exclusive  power  to 
alter  or  amend  the  constitution  of  the  church.  Neither  is  that  pow- 
er vested  in  the  synods  or  in  the  presbyteries  exclusively.  The 
General  Assembly  suggests  or  proposes  changes  in  the  constitution, 
and  submits  them  to  the  presbyteries  which  decide  in  relation  to 
the  proposed  alterations  or  amendments  by  the  constitutional  ma- 
jority. 

In  accordance  with  the  principles  of  constitutional  law,  neither 
of  these  bodies  can  alter  the  constitution  of  the  church,  but  altera- 
tions are  effected  by  the  joint  action  of  all  of  them  united.  The 
power  of  proposing  alterations  in  the  constitution  of  the  church  be- 
longs to  the  General  Assembly,  by  the  constitutional  law  of  the 
Presbyterian  Church,  and  that  power  is  not  a  judicial  one,  surely. 
The  General  Assembly  is  not  then  merely  a  simple  judicatory,  a 
mere  court  of  justice.  A  judicatory  can  expound  the  law.  It  can- 
not alter  nor  propose  alterations  to  the  fundamental  law,  which  is 
the  constitution.  But  the  General  Assembly  can  propose  amend- 
ments to  the  fundamental  law,  passing  on  them  in  the  first  instance, 
and  then  transmitting  them  to  the  presbyteries  for  their  concur- 
rence ;  the  presbyteries  having  no  power  of  making  alterations 
unless  proposed  to  them  by  the  Assetnbly:  so  that  in  this  instance 
the  two  bodies  exercise  co-ordinate  power.    The  power  thus  vested 


403 

in  the  General  Assembly  depends  on  the  fundamental  principles  and 
laws  of  Presbyterianism :  I  will  not,  in  this  instance,  say,  on  the 
Bible,  for  the  Bible  is  silent  as  regards  this  matter.  Now,  though 
Presbyterians  believe  that  all  the  rules  and  regulations  of  their 
church  are  in  conformity  to  the  Bible,  yet  we  admit,  as  regards 
many  things,  we  must  be  allowed  to  appeal  to  the  fundamental  law 
of  the  church,  in  relation  to  ecclesiastical  affairs  where  the  Bible  is 
'silent. 

In  this  respect,  as  well  as  in  the  generality  of  her  constitutional 
rules  and  provisions,  the  constitution  of  the  Presbyterian  Church 
bears  so  very  striking  an  analogy  to  the  constitution  of  our  General 
Government,  as  to  lead  us  to  believe  that  they  have  been  framed 
on  the  same  model.  The  authority  of  the  General  Assembly  of  the 
Presbyterian  Church  to  propose  alterations  in  the  constitution,  to  the 
constituent  presbyteries,  is  analogous  to  the  power  vested  in  the 
Congress  to  propose  amendments  to  the  Constitution  of  the  United 
States,  to  the  several  states.  The  principal  difference  between  them 
is,  the  assent  of  two-thirds  of  the  presbyteries  is  required  in  the  one 
instance,  and  the  consent  of  three-fourths  of  the  states  in  the  other. 
Thus  the  presbyteries  bear  a  relation  to  the  General  Assembly, 
similar  to  that  of  the  several  states  of  this  Union  to  the  United 
States.  Indeed  there  is  a  striking  similarity  throughout.  Certainly 
it  is  a  very  curious,  a  most  singular  and  happy  coincidence,  that 
the  constitution  of  the  Presbyterian  Church,  purporting  as  it  does 
to  be  of  divine  ordination,  should  bear  such  a  close  and  striking 
resemblance  to  the  political  constitution  of  our  common  country. 
This  perhaps  may  be  regarded  as  an  earnest  of  the  perpetuity  of 
our  beloved  national  Union.  We  fondly  regard  our  federal  consti- 
tution as  the  purest  specimen  of  republican  government  that  the 
world  ever  saw,  and  on  the  same  pure  principles  of  republicanism 
as  its  basis,  we  find  established  the  constitution  of  this  republican 
church.  The  two,  without  any  stretch  of  the  imagination,  may  be 
supposed  to  be  framed  after  the  same  model.  And  although  a  crisis 
in  the  affairs  of  the  church  has  arrived,  which  has  spread  disunion 
and  strife  to  her  utmost  bounds,  and  the  state  appears  to  be  nearly 
arrived  at  a  similar  crisis,  yet  may  we  not  confidently  hope  that 
both  these  noble  and  much  revered  institutions  will  be  able  to  abide 
the  shock,  triumph  over  their  enemies,  and  go  on  to  the  very  end  of 
time,  spreading  their  influence  and  dispensing  their  blessings  simul- 
taneously to  all  future  generations'? 

This  is  not  the  first  time  that  schismatic  dissensions  have  dis- 
tracted the  Presbyterian  Church.  Before  this,  the  bush  has  been  on 
fire;  but  it  has  never  yet  been  consumed.  And  I  suppose  that  this 
New  School  party  will  not  be  able  to  consummate  its  entire  de- 
struction. It  is  impossible,  if  what  we  believe  is  true,  that  the 
Presbyterian  Church  is  a  divine  institution,  and  founded  on  divine 
ordination.  And  if  otherwise,  yet  the  analogy  between  the  funda- 
mental principles  of  the  Presbyterian  Church  and  those  of  our  fede- 
ral and  state  governments,  would,  I  should  suppose,  cause  republi- 
cans to  hope  that  this  church  may  yet  become  renovated,  that 
arising  with  renewed  strength  she  may  go  forth  conquering  and  to 
conquer  to  the  latest  ages.     The  church  has  in  itself  a  recuperative 


404 

power,  and  can  never  become  extinct.  Not  that  the  Presbyterian 
church  will  absorb  or  swallow  up  all  other  sects  and  denominations. 
I  wish  no  such  thing,  but  believe  and  hope  that  others,  as  well  as 
Presbyterians,  will  be  preserved  and  flourish,  as  I  desire  the  preser- 
vation of  liberty.  Sectarianism,  or  the  division  of  Christians  into 
different  sects  and  parlies,  purifies  the  church,  as  the  agitation  of 
parties  has  a  tendency  to  purify  the  political  atmosphere.  And,  no 
doubt,  whilst  republican  liberty  shall  be  preserved  in  this  country, 
each  denomination  and  sect  will  be  secure  in  the  enjoyment  of  its 
own  rights  and  privileges,  and  in  the  free  expression  of  opinions. 
I  claim  this  for  the  Presbyterians.  I  claim  it  for  all  churches,  and 
for  every  individual,  whether  he  is  a  member  of  any  church  or  not. 
Whilst  each  sect  pursues  its  own  proper  course,  they  will  go  on 
without  harm  or  interference  with  the  civil  power.  Though  acci- 
dental jars  may  for  a  time  disturb  the  community  or  religious  soci- 
eties, yet  they  all  may  go  on  prospering  and  to  prosper. 

Now  let  us  inquire  respecting  the  legislative  powers  of  the  Gene- 
ral Assembly,  or  the  power  of  passing  laws  for  the  government  of 
the  Presbyterian  Church.  That  the  Assembly  has  this  power,  or 
possesses  a  legislative  character,  in  distinction  from  a  character 
purely  judicial,  is  shown  with  singular  clearness  by  the  curious  fact, 
that  though  all  the  ecclesiastical  courts  of  the  Presbyterian  Church 
are  styled  judicatories,  yet  the  39th  rule  for  regulating  their  pro- 
ceedings, prescribes  that  in  their  "judicial  capacity"  they  shall  be 
conducted  in  a  particular  way.  When  any  one  of  them  "is  about  to 
sit  in  a  judicial  capacity,"  a  particular  form  must  be  observed,  as  is 
always  the  case  in  the  senate  of  the  United  States  when  that  body 
acts  in  a  judicial  capacity,  laying  aside,  for  the  time,  its  legislative 
character,  to  exercise  its  functions  as  a  court  of  justice.  The  39th 
rule,  referred  to,  is  as  follows : — 

"  Whenever  a  judicatory  is  about  to  sit  in  a  judicial  capacity,  it 
shall  be  the  duty  of  the  moderator,  solemnly  to  announce  from  the 
chair,  that  the  body  is  about  to  pass  to  the  consideration  of  the  busi- 
ness assigned  for  trial,  and  to  enjoin  on  the  members  to  recollect 
and  regard  their  high  character,  as  judges  of  a  court  of  Jesus  Christ, 
and  the  solemn  duty  in  which  they  are  about  to  act." 

The  mode  of  proceeding,  here  prescribed,  is  different  from  the 
ordinary  mode  of  proceeding  when  engaged  in  a  legislative  capa- 
city. What  could  be  stronger  than  the  evidence  here  furnished, 
that  the  General  Assembly  possesses  legislative  as  well  as  judicial 
power.  But  there  is  a  distinction,  which  it  is  necessary  to  carry- 
along  with  us,  between  a  limited  government  with  delegated  powers, 
and  a  delegated  government  with  limited  powers. 

The  federal  government  of  the  United  States  is  a  government  of 
limited  powers  specifically  delegated  by  the  states  which  formed  the 
confederacy.  The  state  governments,  on  the  other  hand,  possess- 
ing all  the  attributes  of  sovereignty,  are  limited  only  by  express  • 
provisions  of  their  constitutions,  except  so  far  only  as  certain  stipu- 
lated powers  are  delegated  to  the  General  Government  for  the 
•common  good.  Thus,  then,  if  a  certain  power  is  claimed  to  be 
vested  in  the  Federal  Government,  you  must  show  the  express  grant 
of  that  power  in  the  constitution.     For  if  you  are  not  able  to  find 


405 

such  a  grant  there,  the  power  claimed  is  not  vested  in  that  govern- 
ment, and  Congress  cannot  exercise  such  a  power  without  an  open 
violation  of  the  constitution. 

On  the  contrary,  when  we  come  to  examine  into  the  powers  of 
the  state  governments,  (as  those  of  Pennsylvania  and  South  Caro- 
lina, for  instance,)  the  case  is  exactly  reversed.  Unless  the  power 
claimed  to  be  exercised  by  a  state  legislature,  is  expressly  prohibit- 
ed by  her  constitution,  the  right  to  exercise  that  power  is  undoubted, 
as  one  of  the  necessary  powers  of  government.  In  the  one  case, 
the  power  is  a  gift  or  grant  affirmatively  made.  In  the  other,  it  is 
an  originally  existing  power.  It  is  merely  a  power  which  has  not 
been  prohibited  or  restricted.  The  legislatures  of  the  several  states 
possess,  and  may  exercise  all  the  powers  of  government  not  ex- 
pressly denied  to  them.  Congress,  on  the  other  hand,  cannot  exer- 
cise any  power,  except  by  an  express  grant.  The  powers  of  all 
the  functionaries  of  the  federal  government,  are  defined  by  affirma- 
tive grants.  The  powers  of  the  state  governments  are  undefined.  If, 
then,  the  government  of  the  Presbyterian  Church  is  like  either  of 
these^  it  may  be  very  easily  determined  whether  the  General  As- 
sembly constitutionally  possessed  the  power  which  it  exercised  in 
1837.  If  the  General  Assembly  is  like  Congress,  a  body  of  dele- 
gated powers,  we  must  show  the  grant  of  this  particular  and  speci- 
fic power.  If  it  is  like  the  state  legislatures,  a  body  of  restricted 
powers,  they  must  show  the  restriction  in  the  case.  It  so  hap- 
pens, however,  that  the  constitution  of  the  Presbyterian  Church  is 
not  exactly  like  either  of  these,  nor  can  it  be  judged  by  either  of 
these  rules.  It  contains  a  grant  of  general  powers,  expressed  in 
very  general  terms,  and,  taken  as  a  whole,  approximates  much 
more  to  the  constitutions  of  the  state  governments,  than  to  the  fe- 
deral constitution.  To  illustrate  this.  The  federal  constitution 
provides,  that  the  general  government  shall  have  certain  definite 
powers,  which  are  each  particularly  specified  in  this  form — "Con- 
gress shall  have  power,"  &c.,  to  do  such  and  such  things,  while  the 
language  used  in  the  constitutions  of  the  state  governments  is,  that 
they  shall  have  "  all  legislative  power,"  &c.,  ex  vi  termini.  So, 
to  the  General  Assembly,  there  is  not,  in  the  first  place,  a  dele- 
gation of  specific  powers,  but  a  general  declaration  that  all  power 
belongs  to  it. 

Thus,  in  the  Form  of  Government,  chap.  12,  sect.  1st,  it  is  styled 
"  the  highest  judicatory,"  that  is,  governing  power  "  of  the  Pres- 
byterian Church."  "It  shall  represent  all  the  churches  of  the  de- 
nomination;" possessing,  therefore,  all  the  power  of  all  the  inferior 
judicatories.  Whatever  powers  any  of  these  judicatories  exercises 
in  its  particular  sphere,  and  over  its  own  members,  the  General 
Assembly  shall  exercise  over  the  whole  Presbyterian  Church.  I 
wanted  to  prove  this  to  you  out  of  their  own  book,  and  the  clause 
horn  which  I  have  quoted,  is  a  sweeping  delegation  of  all  the  pow- 
ers of  the  whole  Presbyterian  Church,  whether  legislative,  judicial, 
or  executive  powers.  There  are  no  restrictions  here,  such  as  are 
placed  on  the  other  judicatories  of  the  church.  In  fact,  this  sweep- 
ing grant  of  power  is  not  restricted,  except  only  by  the  Holy  Scrip- 


406 

tures,  and  by  the  decisions  of  a  majority  of  the  inferior  judicatories. 
The  whole  power  over  all  that  concerns  the  whole  Presbyterian 
Church,  is  carried  up  and  vested  in  the  General  Assembly,  in  the 
boldest  and  fullest  terms  imaginable.  It  is  a  delegation  of  all  the 
power  possessed  by  those  who  formed  the  constitution  of  the  Pres- 
byterian Church.  It  is  much  broader,  and  far  more  extensive  than 
is  possessed  by  any  of  our  legislatures.  Should  the  people  of  Penn- 
sylvania delegate  and  transfer  all  their  power,  of  every  description, 
to  the  state  legislature,  then,  and  then  only,  would  the  authority  of 
that  body  be  commensurate  with  the  powers  of  the  General  As- 
sembly of  the  Presbyterian  Church.  They  have  given  to  that  body 
more  power  than  is  given  to  any  legislative  body  in  the  world. 
Unquestionably,  it  was  the  intention  of  the  constituency  of  the 
Presbyterian  Church,  to  give  to  the  General  Assembly,  (in  the  same 
manner  as  the  people  have  conferred  certain  powers  on  the  legisla- 
tures,) the  whole  power  of  the  church,  throughout  its  whole  extent, 
which  the  synods,  presbyteries  and  church  sessions  exercise  within 
their  respective  limits. 

Now,  as  there  was  a  broad  declaration,  vesting  all  the  powers  of 
the  church,  in  the  first  instance,  in  the  General  Assembly,  we  could 
not  desire  any  thing  more.  But,  besides  this,  there  is  a  specific  de- 
legation of  powers,  fully  adequate  to  our  purpose.  In  the  fourth 
section  of  the  same  12th  chapter  of  the  Form  of  Government,  re- 
lating to  appeals,  &c.,  there  is  an  express  grant  of  a  specific  power, 
to  "  review  the  records  of  every  synod,  and  approve  or  censure 
them."  The  General  Assembly,  then,  may  take  those  records,  and 
examine  them.  They  may  do  whatever  they  please,  by  approving 
or  censuring  them,  whether  the  synods  send  them  up  or  not.  Such 
a  power  is  necessary  to  carry  into  effect  that  which  is  expressly 
granted;  because,  otherwise,  the  clause  granting  a  specified  power, 
would  be  barren  and  nugatory.  "They  shall  give  their  advice  and 
instruction  in  all  cases  submitted  to  them,  in  conformity  with  the 
constitution  of  the  church."  What  if  those  whom  they  thus  advise 
or  instruct,  should  refuse  to  take  their  advice,  and  disobey  their  in- 
structions? Have  they  not  power  to  carry  into  effect  their  injunc- 
tions? Are  its  instructions  merely  hortatory?  If  so,  it  presents  the 
anomaly  of  a  government  incapable  of  carrying  into  effect  its  own 
decrees.  Such  a  construction  would  make  the  constitution  nothing 
more  than  a  mass  of  undigested  rules,  which  none  would  be  bound 
to  obey.  "  They  shall  constitute  the  bond  of  union,  peace,  corres- 
pondence and  mutual  confidence  among  all  our  churches."  Now, 
suppose  that  "the  bond  of  union,  peace  and  correspondence  should 
be  broken,  how  are  they  to  restore  it  in  its  original  strength?  Have 
they  not  power  to  heal  the  wound?  The  power  to  preserve  the 
peace  of  the  whole  church  is  given  to  the  General  Assembly,  and 
will  any  one  pretend  to  say  that  they  have  not  the  power  to  heal 
the  breach  of  union  occasioned  by  a  recusant  member,  by  forcing 
him  to  submission?  Besides,  "  to  the  General  Assembly  also  be- 
longs the  power  of  deciding  in  all  controversies  respecting  doctrine 
and  discipline."  All  disputes  and  controversies  are  to  be  deter- 
mined by  this  body  in  the  last  resort.     And  here  it  appears,  that 


407 

when  such  disputes  and  controversies  respect  doctrine  and  disci- 
phne,  the  Assenfibly  is  to  decide  in  the  first  resort.  Whether  they 
affect  presbyteries  or  synods,  the  Genera!  Assembly  is  the  tribunal 
of  ultimate  resort,  and  has  full  power  to  settle  all  such  disputes  and 
controversies,  conclusively  and  finally.  This  power  of  the  General 
Assembly  is  very  broad.  As  regards  doctrine,  it  is  perhaps  not  ap- 
propriate to  the  issue  of  the  present  case,  though  it  is  not  contrary 
to  it;  but  as  it  regards  the  discipline  of  the  church,  it  is  fully  to  our 
purpose.  What?  Shall  it  be  said  that  this  power  and  authority  of 
the  General  Assembly  extends  only  to  controversies  between  indi- 
viduals, and  cannot  be  exercised  in  the  cases  of  presbyteries  and 
synods?  The  great,  the  leading,  the  primary  object  of  the  disci- 
pline, is  the  regulation  of  the  inferior  judicatories  of  the  church. 
And  yet  our  opponents  have  contended,  that  the  Assembly  cannot 
enforce  the  discipline  against  them.  Let  us  read  further.  "  To 
the  Genei^al  Assembly  belongs  the  power  of  reproving,  warning,  or 
hearing  testimony  against  error  in  doctrine,  or  immorality  in  prac- 
tice." Is  this  intended  of  individuals  only,  in  personam,  and  not 
in  rem?  Here  is  the  ansv/er — "in  any  church,  presbyter}^  or 
synod." 

Here,  then,  we  have  it  at  last,  express  power  over  the  presbyte- 
ries, synods,  and  churches,  even  the  express  power  to  regulate  doc- 
trine and  discipline.  And  how  is  this  power  to  be  exercised,  but 
by  such  censures  and  remonstrances  as  they  may  deem  to  be  suited 
to  the  case;  and,  if  these  censures  and  remonstrances  be  disre- 
garded, by  exercising  a  higher  authority  in  the  dissolution  of  ofl^end- 
ing  presbyteries  or  synods  into  their  original  elements,  with  a  view 
to  re-organize,  and  form  them  anew  ?  Accordingly,  the  Discipline  of 
the  Church  thus  concludes  the  definition  of  the  powers  of  the 
General  Assembly,  as  far  as  I  have  occasion  to  refer  to  them, 
"of  erecting  new  synods,  when  it  may  be  judged  necessary;  of 
superintending  the  concerns  of  the  whole  church;  of  corresponding 
with  foreign  churches,  on  such  terms  as  maybe  agreed  upon  by  the 
Assembly  and  the  corresponding  body;  of  suppressing  schismatical 
contentions  and  disputations;  and,  in  general  of  recommending  and 
attempting  reformation  of  manners,  and  the  promotion  of  charily, 
truth,  and  holiness,  through  all  the  churches  under  their  care." 

These,  then,  are  some  of  their  powers.  The  manner  of  proceed- 
ing in  the  exercise  of  those  powers  is  not  pointed  out  by  the  con- 
stitutional provisions.  It  is  their  own  matter.  In  carrying  these 
powers  into  eflfect,  the  General  Assembly  will  proceed  according 
to  its  own  judgment.  The  General  Assembly  has  full  power  to 
dissolve,  new-arrange,  and  re-model  all  of  these  judicatories  within 
its  jurisdiction.  And  they  may  exercise  it  according  to  their  own 
discretion,  or  caprice,  if  you  please.  They  are  under  no  restraint 
as  to  the  manner  of  its  exercise,  and  that  is  all  that  we  wish  to  es- 
tablish: for  your  Honour  will  not  permit  any  question  to  be  raised 
here,  in  this  court,  in  relation  to  the  manner  in  which  an  admitted 
power  has  been  exercised.  Having  shown  these  powers  to  be 
in  the  General  Assembly,  I  assert  that  they  have  always  exercised 
them  at  their  pleasure.     They  have  continually  engaged  in  acts  of 


408 

legislation  on  various  subjects,  as  well  as  exercised  judicial  powers, 
in  cases  of  appeals  from  the  inferior  judicatories.  That  the  Gene- 
ral Assembly  is  not  merely  judicial  in  its  functions,  is  clearly  shown 
by  the  fact  that  a  Committee  of  Overtures  is  appointed  at  the  com- 
mencement of  each  session.  The  appointment  of  this  committee, 
(if  we  had  no  other  evidence,)  conclusively  proves  the  exercise  by 
the  Assembly  of  other  functions  than  those  purely  executive  and 
judicial. 

These  gentlemen  think  hard  of  their  ejectment  and  excision  in 
1837;  but  I  think  that  I  have  fully  shown  ample  authority  in  the 
Assembly  to  do  what  it  did.  These  judicatories  may  be  considered 
as  under  the  supervision  of  the  General  Assembly,  in  a  manner 
somewhat  analogous  to  the  territories  of  the  United  States  which 
are  under  the  supervision  of  Congress.  Congress  is  the  sole  judge 
when  and  under  what  circumstances  a  territory  shall  be  admitted 
into  the  Union,  and  no  state  can  be  admitted  without  the  consent 
of  Congress.  If  objections  are  raised,  no  matter  how  unreosonable 
those  objections  may  be,  they  must  be  disposed  of  before  the  new 
state  can  be  admitted.  This  question  was  settled  in  a  case  which 
is  no  doubt  familiar  to  you,  gentlemen.  I  allude  to  the  case  of  Mis- 
souri in  1821.  The  people  of  the  territory  of  Missouri  had  held  a 
convention,  formed  a  state  constitution,  and  the  legislature  of  the 
newly  organized  state  elected  two  persons  as  senators,  who  were 
not  allowed  to  take  their  seats  in  the  Senate  of  the  United  States 
during  that  session,  because  Congress  had  not  yet  received  the  new 
state  as  an  integral  part  of  the  Union.  Missouri  claimed  admission, 
and  their  present  senator,  who  has  since  rendered  himself  so  con- 
spicuous by  predicting  that  within  a  limited  time  "gold  would  flow 
up  the  Mississippi  against  wind  and  tide,"  then  signalized  himself 
by  protesting  against  the  power  of  Congress  to  refuse  to  admit  Mis- 
souri when  she  made  application;  but  that  gentleman  walked  about 
the  lobby  of  the  Senate  chamber,  and  the  rotunda  of  the  capitol, 
during  one  whole  session  of  Congress.  I  am  not  now  about  to 
enter  into  the  merits  of  the  Missouri  question,  as  it  has  been  quaint- 
ly termed.  It  is  not  my  purpose  to  inquire  into  the  relevanc}'  of 
the  abolition  and  anti-abolition  arguments  then  advanced  by  distin- 
guished statesmen.  My  purpose  is  simply  to  show  that  the  power 
of  Congress  is  wholly  discretionary,  as  to  the  admission  of  new 
states  into  the  Union.  The  senators  from  Missouri  could  not  take 
their  seats  until  Congress  was  satisfied,  and  the  constitution  does 
not  limit  Congress  as  to  time.  The  power  of  Congress  in  the  case 
is  wholly  discretionary.  So  the  power  of  the  General  Assembly 
over  the  presbyteries  being  discretionary,  like  that  of  Congress  over 
the  territories,  there  is  no  question  as  to  the  power  of  the  General 
Assembly  to  refuse  to  admit  the  delegates  from  a  presbytery  until 
the  General  Assembly  shall  be  satisfied  of  their  right  to  admission. 

May  it  please  your  Honour, — I  have  contented  myself  with  glanc- 
ing very  cursorily  at  several  of  the  topics  last  mentioned,  princi- 
pally because  I  had  previously  occupied  so  large  a  portion  of  your 
attention,  and  partly  because,  as  I  conceive,  they  have  no  relevancy 
to  the  case  before  you;  though  at  the  request  of  my  clients  I  have 


409 

presented  them  to  your  Honour  and  to  the  jury,  I  now  leave  them. 
They  may  receive  further  examination,  perhaps,  from  the  learned 
and  able  counsel  who  will  follow  me  on  behalf  of  the  defendants, 
and  who  will  supply  any  defects  there  may  be  in  my  argument. 

The  great  question,  which  you,  gentlemen,  are  shortly  to  decide, 
is,  whether  these  relators,  or  rather  the  party  whom  they  represent, 
are  what  they  claim  to  be,  exclusively  the  General  Assembly  of  the 
Presbyterian  Church.     And  I  hope,  that  in  a  review  of  what  I  have 
already  said,  and  of  what  may  hereafter  be   advanced,  you  will 
arrive  at  the  conclusion  that   these  relators  have  not  established 
their  claims.    I  do  not  think  that  the  General  Assembly  of  1837  did 
wrong.     If  it  did,  that  wrong  was  inflicted  on  the  four  excinded 
synods  only,  and  not   more  than  one  half  of  these  gentlemen  who 
assert  that  they  formed  the  constitutional  General  Assembly,  have 
any  cause  to  complain.     The  rights  of  the  other  half  to  their  seats 
were  acknowledged  by  us  at  the  commencement  of  the   General 
Assembly  of  1838;  and  they  did  sit  with   us   at  that  time.     The 
rights  of  the  fifty-four  commissioners  who  were  excluded,  consti- 
tute the  case  before  you,  if  viewed  in  reference  to  the  acts  of  1837. 
They,  only,  are  the  rights  which  these  relators  seek  to  establish  by 
this  most  extraordinary  proceeding.      They  say  that  we  acted  un- 
justly;   but  if  it  were  so,  is  this  the  only  way  to  obtain  redress? 
Must  they  annihilate  us  in  order  to  reinstate  themselves?  If  wrong 
was  committed,  the  wrong  was  in  exclusion,  and  the  remedy  would 
have  been   in  admission.      Why,  then,  did  they  not  return  in  the 
manner  prescribed  by  the  General  Assembly,  and  ask  leave  to  take 
their  seats  amongst  us  in  the  General  Assembly  of  1838,  composed 
of  delegates  which  had  come  fresh  from  the  people?    Such  a  pro- 
position was  not  submitted  to  us.    They  would  not  give  us  a  chance 
to   review  the  proceedings  of  the  Assembly  of  1837.      If  a  wrong 
had  been  done  them,  that  wrong  could  have  been  remedied  by  re- 
voking the  acts  of  which  they  complain.    Or  if  they  did  not  choose 
to  do  this,  why  did  they  not  appeal  to  the  laws  of  the  land  to  effect 
the  same  purpose?    Why  do  they  seek  to  destroy  us,  and  obliterate 
our  very  name  ?   Must  they  destroy  us  that  they  may  have  their 
rights  ?     Must  they  disfranchise  us  and  take  from  us  what  they  ad- 
mit belongs  exclusively  to  us?     Must  they  usurp  our  seats,  lord  it 
over  us,  and  exercise  uncontrolled  power  over  the  charitable  funds 
of  the  church, — dispensing  the  same  in  what  manner  they  please? 
Why  did  they  not  submit  their  claims  to  that  Assembly,  which  con- 
tained none  of  those  who  were  members  of  the  General  Assembly 
of  1837,  except  such  as  had  been  sent  back  by  the  people  after  the 
whole  subject  was  submitted  to  them.     Such  an  appeal  was  never 
made  to  us,  and  they  cannot  say  that   it  would  have  been  decided 
against  them  if  it  had  been  made.     Or  if  they  were  afraid  to  trust 
the  General  Assembly  of  1838,  if  they  apprehended  that  the  mem- 
bers of  that  Assembly  would  prove  unjust  to  them,  why  not  apply  for 
a  mandamus,  when,  if  they  were  unjustly  deprived  of  their  seats  in 
the  General  Assembly,  that  Assembly  would  have  been  compelled 
to  open  their  doors  and  admit  them  ?    No :  that  was  not  enough. 
They  did  not  proceed  on  these  principles  to  obtain  redress.    They 

35 


410 

would  not  content  themselves  merely  with  recovering  what  ihey 
alleged  was  unjustly  wrested  from  them.  Their  motto  is  Aut  CcBsar, 
Aut  KulluSi  They  thus  usurp  the  judgment-seat  of  the  great  I  AM, 
and  claiming  to  be  All  in  All,  they  undertake  to  blot  out  our  very 
existence;  They  do  not  desire  merely  to  obtain  and  occupy  their 
old  placesj  but  they  are  determined  to  seize  on  the  whole  of  the 
funds  of  the  church,  and  to  propose  terms  to  us.  Thus  the  minori- 
ty say  to  the  majority,  "  We  will  drag  you  to  onr  feet.  We  will 
subdue  you,  and  humble  you  to  our  purpose.''  We  must  be  hum- 
bled, subdued,  must  come  as  supplicants  for  their  bounty.  They 
were  not  willing  to  abide  the  trifling  delay  that  would  have  been 
required  by  a  formal  application  to  the  General  Assembly  of  1838, 
after  it  had  become  fully  organized.  This  delay,  it  is  true,  might 
have  been  a  misfortune  in  their  case;  but,  gentlemen,  delays  in 
the  administration  of  justice  are  often  the  price  which  we  are 
obliged  to  pay  for  the  enjoyment  of  liberty.  It  may  be  said  that 
the  "  unalienable  rights  of  life,  liberty,  and  the  pursuit  of  ha])piness 
are  inherent  in  every  man,"  but  we  often  find,  that  for  a  time,  at 
least,  the  law  will  not  permit  every  one  to  exercise  those  rights. 
But  no  such  excuse  is  for  them.  If  they  were  unlawfully  cut 
off  in  1837,  were  unconstitutionally  disfranchised,  the  laws  of  the 
land  would  restore  them  to  their  seats.  But  they  were  not  content 
to  be  a  part  of  the  General  Assembly  and  of  the  Presbyterian 
Church.  They  were  determined  to  be  the  whole  General  Assem- 
bly, and  place  the  whole  church  under  their  entire  control.  If  it 
was  not  the  money  that  they  wanted, — if  they  did  not  mean  to 
strike  down  men  who  were  obnoxious  to  them,  and  take  the  money, 
there  was  another  course  by  which  they  might  have  tried  the  ques- 
tion of  rights.  I  do  not  pretend  to  advise  them,  but  to  show  that 
there  was  no  necessity  for  their  pursuing  this  most  extraordinary 
course  of  proceeding.  Their  clerks  might  have  brought  an  action 
against  ours  to  recover  the  books  and  papers  pertaining  to  the  re* 
cords  of  the  General  Assembly  of  the  Presbyterian  Church.  If  an 
action  of  trover  had  been  instituted  for  these  papers  by  their  clerks, 
in  that  way  the  whole  matter  would  have  been  brought  up.  Thus 
the  question  might  have  been  peacefully  decided,  whether  they 
were  a  part,  or,  if  they  please,  the  whole  of  the  Presbyterian  Church. 
This  question  could  have  been  reached  by  an  action  of  trover,  and 
the  institution  of  such  an  action  would  have  shown  that  they  were 
not  disposed  to  strike  to  the  ground  that  venerable  gentleman, 
(pointing  at  Dr.  A.  Green,)  and  seize  upon  the  purse  of  the  church. 
But,  instead  of  this,  they  attack  directly  our  persons,  our  property, 
and  our  characters.  This  claim  to  be  the  whole  church  is  in  assump- 
tion, made  in  a  spirit  of  usurpation,  which  I  trust  the  jury,  which  is 
well  chosen,  being  composed  of  intelligent  men  of  different  religious 
denominations,  will  signally  chastise. 

Well,  gentlemen,  it  is  for  you  to  say  whether  they  are  what  they 
have  chosen  to  claim,  the  whole  Presbyterian  Church,  and  we  no 
part  or  parcel  thereof.  On  your  verdict  the  claims  of  each  party 
depends.  By  your  verdict  these  questions  must  be  answered,  and 
the  interesting  problem  be  solved.      If  you  decide  that  we  are 


411 

not  the  Presbyterian  Church,  and  thus  give  the  whole  of  the  funds, 
together  with  the  name  and  character  of  the  Presbyterian  Church, 
and  the  privileges  of  the  corporation  also,  to  a  body  of  men  who 
were  not  contemplated  by  the  "  Act  of  Incorporation,"  we  will  sub- 
mit, even  should  this,  so  unexpected  to  us,  be  the  result,  that  we  are 
to  part  whh  our  patrimonial  inheritance.  It  is  for  you  to  decide 
whether  we  shall  go  mourning  on  our  way,  or  whether  we  shall 
again  rejoice  in  hope.  If  you  bring  in  a  verdict  for  them,  we  will 
regard  the  money  as  dross;  wholly  unworthy  of  our  notice.  We 
will  respect  your  verdict,  but  we  shall  not  be  cast  down.  In  the 
bosoms  of  the  fathers  of  the  church  there  swells  the  spirit  of  philan- 
thropy and  Christian  fortitude  which  will  still  sustain  them.  In  the 
days  of  old  they  have  rallied  around  the  standard  of  their  faith,  in 
impenetrable  array  :  so  now,  with  the  numerous  company  of  young 
men  who  will  feel  it  to  bean  honour  to  fall  at  their  sides  and  perish 
in  support  of  the  principles  of  their  church,  they  will  again  rally, 
though  for  a  transient  period  they  may  present  the  appearance  of 
a  broken  band.  Those  who  have  planted  and  watered  the  church, 
those  whose  prayers  have  ascended  to  the  throne  of  grace,  and  pre- 
vailed with  the  omnipotent  King  of  heaven,  who  has  dispensed  rich 
blessings  on  their  labours,  though  that  which  their  hearts  have  so 
fondly  cherished,  that  which  they  hold  dearer  than  life,  be  taken 
from  them  by  the  finesse,  the  legal  artifices  and  intendments  of 
their  adversaries,  will  still  find  comfort  in  the  midst  of  their  sore 
affliction,  in  those  rich  promises  to  the  church,  which  they  be- 
lieved will  assuredly  be  fulfilled.  But  I  do  not  expect  such  a  result. 
I  confidently  look  for  your  verdict  in  our  favour,  and  I  will  tell  you 
the  consequences. 

If  your  verdict  is  with  us,  the  Old  School  party,  being  sustained 
by  the  bright  example  and  Christian  precepts  of  those  who  have 
gone  before  them,  will  be  strengthened  by  your  verdict,  and  encou- 
raged to  persevere  in  those  noble  enterprises  which  they  have  un- 
dertaken. And,  in  a  short  time,  those,  who,  like  the  wild  prodigal, 
have  gone  forth  to  seek  their  fortunes  elsewhere,  becoming  im- 
poverished by  your  verdict,  will  return  to  their  spiritual  home, 
— the  church  of  their  fathers,  when  we  will  kill  for  them  the  fat- 
ted calf,  and,  rejoicing  in  the  restoration  of  unity  in  the  church,  we 
will  spread  the  banquet  of  peace  and  of  everlasting  love.  Should 
this  result,  as  I  confidently  hope  that  it  will,  be  the  consequence  of 
your  verdict,  all  the  difficulties  will  be  removed,  the  true  flock  will 
be  again  congregated  within  its  venerable  fold,  and  you  will  have 
the  happiness  to  see,  in  the  whole  Presbyterian  Church,  the  resto- 
ration of  peace  and  harmony,  every  one  enjoying  the  shade  of  his 
vine,  none  of  them  being  afraid.  You  will  also  witness  perfect 
harmony  established,  as  before,  between  Presbyterians  and  Congre- 
gationalists.  Each  moving  in  his  appropriate  sphere,  may  shed  the 
blessings  of  gospel  light  around  them,  as  the  planetary  orbs,  mov- 
ing in  that  majestic  and  harmonious  order  which  was  established 
by  the  wisdom  and  power  of  the  Creator.  Such  a  verdict  might 
cause  the  people  of  a  small  section  of  this  country,  to  bow  their 
tieads  in  sorroWf  yet  many  ten  thousand  tongues  would  send  forth 


412 

a  shout  of  joy  and  thanksgiving.  From  the  mountains  in  the  inte- 
rior, and  all  the  borders  of  your  own  state,  from  your  sister,.  New 
Jersey ;  indeed,  from  this  point,  throughout  the  great  South  and 
West,  to  the  banks  of  the  Mississippi,  would  swell  one  general  ju- 
bilee of  jov  and  praise,  one  loud  burst  of  joy  and  gratitude  to  the 
jury,  mingled  with  thanksgiving  and  prayers  of  grateful  adoration 
to  Almighty  God,  for  this  renewed  evidence  of  his  superintending 
care  and  divine  regard  for  his  church  and  people. 

I  have  now  discharged,  so  far  as  I  have  been  able,  the  duties  of 
the  very  responsible  situation  which  I  have  occupied  in  this  court. 
I  had  not  intended  to  trespass  so  long  on  your  patience,  (and  per- 
haps I  have  trespassed  too  long,)  but  I  have  been  impelled  by  the 
conviction  that  it  was  my  duty  to  devote  to  the  subject  connected 
with  this  controversy,  the  whole  of  my  strength,  both  of  mind  and 
body.  I  humbly  ask  your  pardon,  for  having  detained  you  so  long. 
The  only  apology  I  can  ofl'er  is,  that  1  could  do  no  less,  according 
to  my  impressions  of  duty.  I  thank  you,  gentlemen  of  the  jury,  I 
thank  you  for  your  attention. 

And  may  it  please  your  Honour  :  I  may,  perhaps,  have  marred 
the  sympathy  of  this  case,  by  the  unconnected  manner  in  which  I 
have  presented  tlie  several  points  for  consideration.  I  thank  the 
Court  for  the  indulgence  extended  to  me,  while  I  have  had  the  pri- 
vilege of  appearing  as  an  advocate  for  the  defendants — a  privilege 
which  has  been  so  freely  and  cordially  granted  to  me,  a  stranger, 
and  to  which  I  should  not  otherwise  have  been  entitled,  than  by  the 
courtesy  of  the  bar. 

ARGUMENT  OF  JOSEPH  R.  INGERSOLL.  ESQ. 
Occupying-  two  days — the  21st  and  22d  of  May,  1839. 

May  it  please  j'our  Honour — Gentlemen  of  the  Jury:  I  shall 
dispense  with  the  usual  formality  in  opening  what  I  have  to  lay 
before  you  in  relation  to  this  very  important  cause.  Permit  me  to 
remark,  that  the  learned  and  eloquent  gentleman  who  has  preceded 
me,  has  laid  hold  of  every  thing  belonging  to  the  case  with  such 
an  unsparing  grasp — he  has  reaped  the  harvest  field  with  such  an 
avaricious  hand,  that  he  seems  to  have  left  very  little  for  me  to  do. 
I  shall,  however,  proceed  to  discharge  the  duty  which  has  been 
imposed  on  me,  applying  myself  to  the  patient  task  of  gathering 
what  maybe  considered  as  but  the  gleamings  of  the  vintage,  a  task 
increased,  in  this  case,  both  in  ditficulty  and  respoi^ibiiity,  by  the 
fact  that  he  has  done  the  work  so  well.  No  one  bat  myself  has 
any  occasion  for  regret,  however,  on  this  account.  And  allow 
me  to  say,  that  I  should  feel  myself  deficient  in  duty  to  the 
cause,  if  I  did  not  here  return  my  cordial  thanks  to  my  distin- 
guished colleague,  for  the  example  which  he  has  furnished  through- 
out the  whole  period  of  his  attention  to  this  case,  of  fair  and  gen- 
tlemanly deportment,  marked  by  that  urbanity  of  manner,  that 
high-minded  and  honourable  bearing,  which  has  drawn  a  tribute 
of  admiration  from  all  who  have  been  present,  even  from  the  first 
mon:ient  that  he  took  his  seat  within  this  bar^  and  which  cannot 


413 

fail  to  contribute  to  the  true  administration  of  justice;  whilst  his 
learning,  his  talents,  and  his  eloquence  have  compleieiy  captivated 
us.  The  opposite  counsel  themselves  must  acknowledsje  this.  They 
do  acknowledge  it,  though  they  may  be  unvi^illing  to  admit  the 
force  of  his  argument.  They  cannot  have  failed  to  feel  the  force 
of  his  well-directed  blows,  any  more  than  to  admire  the  peculiarly 
impressive  manner  in  which  he  has  shapen  his  words,  with  consum- 
mate skill  and  judgment,  to  meet  every  point  in  the  whole  case.  So 
large  a  portion  of  his  address  has  been  taken  up  with  explaining 
the  principles  of  parliamentary  law,  and  applying  those  principles 
to  the  fact  elicited  by  the  examination  of  the  witnesses,  that  there 
is  little  left  for  me  to  do  on  that  subject.  I  trust  that  my  brethren 
of  the  bar  are  all  prepared  to  join  me  in  this  cordial  acknowledg- 
ment, and  to  welcome  this  distinguished  citizen  of  a  sister  state  to 
our  cit}'.  He  is  indeed  one  of  us,  for  though  he  is  now  a  citizen  of 
South  Carolina,  he  is  a  native  of  Philadelphia.  Though  his  parents 
were  Virginians,  he  was  born  in  this  city  during  the  sojourn  of  his 
parents  here,  whilst  his  honoured  father  was  attending  to  his  official 
duties  as  a  member  of  Congress  from  Virginia.  We  all,  he  may 
be  assured,  hail  him  a  welcome  visiter  to  the  city  of  his  nativity, 
and  I  trust  that  an  extended  intercourse  between  the  citizens  of 
these  sister  republics,  which  are  bound  together  by  common  ties, 
will  be  highly  salutary  to  us  all. 

As  I  said,  my  distinguished  friend  and  colleague  has  reaped  the 
field  with  such  an  avaricious  hand,  that  he  has  left  for  me  but  the 
humble  task  of  collecting  in  the  gleanings  of  the  harvest.  My 
task  is  the  more  onerous.  The  responsibility  resting  on  me  is 
greatly  enhanced  by  the  circumstance  of  its  having  fallen  to  my 
lot  to  follow  in  this  argument  one  of  so  deservedly  great  celebrity 
as  an  orator  and  a  statesman.  I  trust,  however,  that  I  shall  not 
vainly  hope  to  gain  your  attention  to  the  additional  remarks  which 
I  apprehend  it  to  be  my  duty  to  make  in  relation  to  the  case  before 
you.  The  circumstances  are  such  as  require  your  individed  atten- 
tion to  ihe  arguments  of  the  counsel,  as  this  is  required  by  your 
oaths,  and  is  for  you  the  only  honourable  and  fair  course  to  pursue. 
The  task  is  certainly  more  humble  to  those  who  follow  in  the 
argument,  under  such  circumstances  as  I  am  now  placed  in,  yet 
such  must  often  fall  to  the  lot  of  those  who  are  engaged  iu  securing 
the  ends  of  justice. 

It  becomes  my  duty,  gentlemen,  in  the  remarks  which  I  have  to 
submit,  to  set  out  with  presenting  to  you  a  statement  of  the  dif- 
ference between  the  parties.  I  do  not  mean  the  personal  differences, 
if  there  are  any  such  ;  not  w  hose  feelings  are  right  or  wrong,  or 
whose  motives  are  purest,  but  the  visible  points  of  difference  as 
they  radiate  from  the  law,  and  are  exhibited  by  the  evidence  which 
has  been  elicited  during  this  suit.  These  circumstances,  to  be  satis- 
factorily investigated,  must  be  deliberately  compared  with  each 
other,  and  this  deliberate  investigation  and  comparison  of  all  the 
facts  and  circumstances  is  due  to  the  parties,  and  to  the  importance 
of  the  cause  itself  The  visible  points  in  the  case  are  those  facts 
arjid  circumstances  which  must  influence  yoijir  decision.    It  is  these 

35* 


414 

facts  to  which  you  are  required  to  pay  particular  attention  on  each 
side  of  the  question.  It  is  admitted  by  the  counsel  on  both  sides, 
as  it  evidently  may  well  be,  that  the  facts  of  the  case  must  rule 
your  decision  under  the  law.  I  trust,  then,  that  it  will  not  be  diffi 
cult  for  you  to  arrive  at  a  correct  conclusion  in  the  premises  as 
you  carefully  weigh  and  attentively  investigate  these  facts. 

You  will  not  suffer  the  tedious  character  of  this  investigation  to 
distract  your  attention.  The  close  attention  which  you,  gentlemen 
of  the  jury,  have  paid  from  the  commencement,  to  the  whole  case,, 
warrants  the  conclusion  that  you  will  not  suffer  your  patience  to 
become  exhausted,  while  its  exercise  is  necessary  to  the  attainment 
of  a  correct  result.  There  are  certain  facts  and  circumstances 
which  have  transpired  at  different  periods  from  the  very  com- 
mencement of  the  difficulties  between  these  two  parties,  or  rather 
between  those  who  are  the  active  representatives  of  the  two  parties 
in  the  Presbyterian  Church,  and  those  individuals  who  have  been 
actively  engaged  in  this  unpleasant  and  painful  controversy,  which 
show  what  were  the  designs  of  the  respective  parties,  though  one 
half  perhaps  has  not  been  expressed  in  words.  With  regard  to 
these  important  trusts,  the  Church  funds,  which  are  now  involved 
in  this  controversy,  the  difference  between  the  two  parties  was 
very  little  in  the  Assembly  of  1837,  as  appears  by  tiie  correspon- 
dence of  their  representatives  in  the  celebrated  committee  of  ten. 

The  naked  question  now  is,  as  to  who  are  the  legal  trustees  of 
the  General  Assembly  of  the  Presbyterian  Church.  Although  at 
first  view  this  might  appear  to  be  a  very  simple  question,  yet,  while 
it  is  the  very  question  which  is  to  decide  the  whole  case  at  issue, 
in  order  to  answer  this,  you  are  not  required  to  try  the  titles  of  the 
trustees  merely,  but  you  are  required  to  try  the  titles  of  two  bodies, 
claiming  to  be  the  General  Assembly  itself,  it  being  a  self  evident 
proposition,  that  the  legal  trustees  of  the  church  have  been  chosen 
by  the  legal  Assembly. 

On  a  cTose  analysis  of  this  question,  it  may  appear  that  these  plain- 
tiffs are  such  only,  because  they  desire  to  possess  the  golden  keys. 
In  the  course  of  our  investigations  the  inquiry  arises,  whether  the 
plaintiffs  in  this  suit  had  equal  power  in  the  church  with  the  other 
party  ;  and  I  have  made  a  miscalculation,  if  the  examination  of  that 
question  does  not  put  our  opponents  down  at  once.  To  this  cir- 
cumstance I  desire  particularly  to  direct  your  attention.  It  is  aa 
essential  part  of  our  defence  to  show  that  they  had  not  equal 
power  ;  and  that,  therefore,  their  acts  cannot  bind  us.  The  minority 
cannot  bind  the  majority.  It  is  impossible,  on  any  principle  of  jus- 
tice or  of  law.  Every  thing  in  relation  to  this  case  must  bend  to 
some  points  of  this  kind,  which  I  am  now  about  to  exhibit  to  you, 
and  to  which  it  is  necessary  for  you  to  give  a  close  attention  in 
order  to  an  understanding  of  the  merits  of  the  case  in  controversy. 
In  taking  up  those  points  which  have  a  bearing  on  this  case,  I  see 
no  difficulty,  except  in  selecting  those  which  are  most  material  to 
the  issue.  It  may  be  necessary,  in  the  first  place,  to  ascertain  the 
true  nature  of  the  question*  and  in  order  to  do  this  you  must  refer 
to  the  situation  and  comparative  strength  of  these  parties  m  the 


415 

General  Assembly  of  1837.     For  the  case  of  the  plaintiffs  is  based 
on  the  allegation  of  injustice  having  been  done  them    by  certain 
proceedings  of  the  General  Assembly  of  1837;   and  every  simple 
proposition  that  was  made  in  that  Assembly  has  been  supposed  to 
be  connected  with  this  controversy.     By  the  fact,  then,  that  every 
one  of  those  propositions  was  carried  against  the  New  School,  it  is 
conclusively  evident  that  the  Old  School  were  a  decided  majority 
in  that  Assembly.     But  there  was  an  essential  difference  (call  it  by 
what   name  you    please,)  between   the  decisions   of  the  General 
Assembly  of  1837,  and  what  those  proceedings  are  alleged  to  have 
been.    But  if  it  were  shown  that  actual  injustice  were  done  to  those 
parties,  would  that  help  their  casein  this  suit?     If,  as  I  think  has 
been  fully  shown,  the   Old  School,  being  the   majority,  had   the 
power  to  do  what  they  did,  we  cannot,  in  this  court,  inquire  into 
the  right  of  their  doing.      We  are    led  then  directly  to  the  main 
position  of  the  opposite  party.     The  plaintiffs  allege  that  the  pro- 
ceedings of  1837,  excluding  the  four  synods,  were  null  and  void. 
I  would  ask  my  learned  friend,  is  not   this  the  very  question  for 
investigation,  and  which  it  is  necessary  for  us  to  reach  in  argument, 
so  far  as  the  Assembly  of  1837  is  concerned?      They  assert  the 
affirmative  of  this  proposition,  and  we  assert  the  negative.     You 
may  see,  then,  that  the  point  of  difference  between  us  in  relation 
to  this  subject  is  very  simple,  and  one   which  you  will  easily  bear 
in  mind  ;    and  I  shall  pursue  no  point  farther  than  is  necessary  to 
a  fair  view   of  the  whole  case,  and  will  only  here  remind  you, 
that   they  do  virtually  abandon    their  ground  on    this  subject,  by 
founding  their  claims  in  this  suit  on  the  assumption  that  they  are 
the  legitimate  successors  of  that  very  Assembly  of  1837.     It  was 
then  but  a  mere  abstraction,  which,  if  analysed,  dwindles  to  a  mere 
mathematical  point,  which  they  say  thus   separated  the  soul  from 
the  body  of  the  church.      But  the  plaintiffs  must  go  a  step  further. 
It  will  not  do  for  them  to  rest  their  case  on  the  affirmative  of  this 
proposition,  even  if  it  were  established.     If  the  acts  of  1837  were 
null  and  void,  that  would  not  invalidate  the  title  of  these  defendants; 
they  are  still  trustees  of  the  church.      Can  these  men,  who  were 
declared   to  be  out  of  ecclesiastical  connexion    by   the   General 
Assembly  itself,  (for  the  decision  of  the  majority  made  it  the  act  of 
the  Assembly,)  can  they  displace  the  trustees  who  were  previously 
appointed?     They  see  this  difficulty,  and  this  requires  of  them  the 
producing  of  other  facts.      They  are  bound  to   go  a   large  step 
further  to  show   that  they   have   supplanted   the   trustees.      And 
when  they  have  made  out  that  proposition,  I  would  remind  them 
that  they  are  to  make  out  another.      To  prove  that  they  have  in 
fact  succeeded  them  and  have  the  better  title,  they  have  to  show 
that  they  have  done  it  in  order,  that  they  have  done  it  regularly. 
They  must  never  shrink  from  an  investigation,  whether  their  provi- 
sional Assembly  was  intrinsically  and  extrinsically  the  legal  Assem- 
bly of  the  Presbyterian  Church.     They,  therefore,  propose  to  satisfy 
you  that  they  affected  a  lawful  change  in  the  General  Assembly, 
possessing  themselves  of  its  powers,  and  that  carrying  them  away 
with  them,  they  exercised  them  in  another  place ;  that  on  the  17th 


416 

day  of  May,  1838,  in  Ranstead  court,  they  effected  an  entire  revo- 
lution in  the  Presbyterian  Church,  by  choosing  a  lawful  chairman, 
and  that  the  General  Assembly  itself  submitted,  by  an  intendment 
of  law,  to  all  which  was  then  done:  that  the  whole  body  assented 
to  each  of  their  propositions  and  motions.  Now,  we  deny  this  pro- 
position, and  it  is  my  purpose  to  show,  that  no  involuntary  change 
of  this  kind  was  affected  by  their  voluntary  secession;  because  it 
would  be  unreasonable  to  suppose  that  such  a  change  could  be 
effected  without  the  knowledge  of  the  parties  concerned.  Without 
the  consent  of  the  General  Assembly  itself,  by  a  direct  vote,  it  was 
impossible  to  affect  the  least  change.  I  cannot  doubt  that  this 
question  must  be  so  decided  by  yourselves;  and  if  the  defendants 
can  make  out  this  proposition  to  your  entire  satisfaction,  you  are 
bound  to  give  them  your  verdict:  their  case  will  then  be  made 
out.  But  the  plaintiffs  must  substantiate  both  their  propositions,  in 
order  to  have  any  ground  on  which  to  stand  in  court.  If  the  As- 
sembly of  1837  were  ever  so  much  in  fault,  if  it  were  even  anni- 
hilated, yet  the  defendants  have  not  advanced  a  step.  The  trus- 
tees remain  by  previous  appointment.  If  they  should  prove  that 
the  decisions  of  1837  were  wrong,  and  that  the  four  synods  were 
still  apart  of  the  Assembly,  and  that  the  commissioners  from  their 
presbyteries  ought  to  have  been  received,  still  they  have  a  burthen 
greater  than  Atlas  himself  could  bear,  to  show  that,  in  1838,  they 
effected  a  lawful  organization  of  the  General  Assembly  of  the 
Presbyterian  Church. 

If  what  has  been  stated  relative  to  the  General  Assembly  of 
1837  be  stricken  from  the  testimony,  the  relators  could  not  ad- 
vance a  single  step  towards  gaining  what  they  are  now  contend- 
ing for,  even  by  an  intendment  of  law.  They  could  have  no  hopes 
of  obtaining  a  decree  of  ouster,  based  on  the  proceedings  in  1838, 
separate  and  apart  from  those  of  1837.  But  it  will  not  do  to  rest 
on  what  is  not  material  to  the  issue.  You  will,  however,  recollect, 
gentlemen,  that  the  New  School  party  voted  in  1837  on  the  question 
relative  to  the  passage  of  the  excinding  resolutions.  The  question 
is  not  material  whether  they  then  voted  atffrmatively  or  negatively, 
as  the  fact  that  they  did  vote  was,  of  itself,  a  virtual  acknow- 
ledgment that  the  General  Assembly  had  the  constitutional  power 
to  pass  those  resolutions.  It  does  not  appear  that  they  voted 
afterwards  except  on  the  appointment  of  trustees  of  the  General 
Assembly  ;  but  that  is  quite  sufficient  to  show  that  they  considered 
that  the  General  Assembly  was  still  in  existence.  Their  vote  on 
that  question  was  an  acknowledgment,  on  their  part,  that  the  As- 
sembly had  not  dissolved  itself  by  any  of  its  former  acts.  Though 
they  then  voted  against  any  change  of  the  trustees,  yet  now,  for- 
sooth, they  must  all  be  struck  out  of  official  existence,  even  that 
venerable  patriarch  of  the  Presbyterian  Church  who  has  been  so 
often  adverted  to  during  the  progress  of  this  trial,  Dr.  Green.  They, 
therefore,  acknowledge  that  the  General  Assembly  continued  a  le- 
gitimate existence,  or,  on  the  other  hand,  if  they  make  it  null  and 
void,  after  they  had  declared  those  four  synods  to  be  no  part  of 
the  Presbyterian  Church,  they  then  make  void  their  own  proceed- 


417 

ings  had  on  the  17th  of  May,  1838,  in  Ranstead  court,  in  the  city 
of  Philadelphia ;  in  which  proceedings  they  exhibited  themselves 
under  circumstances  so  unenviable,  that  the  defendants  do  not 
wish  to  emulate  them,  in  this  particular  ai  least.  And  yet  they 
claim  to  be  that  very  General  Assembly  which  they  then  attempted 
to  destroy  root  and  branch.  Each  of  the  several  circumstances 
connected  with  this  cause  may  be  small  in  itself,  yet  when  the 
whole  of  these  circumstances  are  connected  together,  they  make 
in  the  aggregate  a  compound  of  considerable  magnitude.  It  makes 
but  little  difference  where  we  strike  this  chain  of  circumstances, 
which  is  intertwined  throughout  the  whole  case.  Any  one  of 
them  will  do.  To  strike  at  any  one  of  them  will  answer  our 
purpose,  for 

«♦  whichever  link  you  strike 

"  Tenth  or  ten  thousandth  breaks  the  chain  alike." 

The  relators  and  their  counsel  have  taken  the  liberty  to  lay  the 
whole  stress  of  their  claim  and  argument  in  support  of  that  claim 
on  an  intendment  of  agreeing  to  their  propositions,  and  the  defend- 
ants have  taken  the  liberty  of  placing  their  defence  on  an  intend- 
ment of  not  agreeing  to  these  propositions.  With  these  intendments 
are  connected  the  only  important  facts  in  the  case  at  issue.  The 
question  arises,  how  are  we  to  get  at  the  exact  state  of  facts  in  this 
case?  I  will  first  confine  myself  to  those  connected  with  the  General 
Assembly  of  1837,  as  being  first  in  order  of  time,  if  not  first  in  im- 
portance. These  are  first  in  order  of  that  assemblage  of  facts  and 
circumstances,  which  form  the  broad  base  on  which  we  stand  in 
our  defence;  and  these  must  be  considered  in  order  to  ascertain 
the  legality  of  the  proceedings  of  that  body.  I  shall  endeavour  as 
I  proceed,  to  distinguish,  amidst  the  multiplicity  and  variety  of  the 
surrounding  circumstances,  which  bear  on  the  case  now  before 
you,  andv  which  are  explanatory  of  the  principles  of  the  Presbyte- 
rian Church,  and  the  power  of  the  General  Assembly  over  the  in- 
ferior judicatories  and  the  individual  members  of  the  Church. 

We  are  then  to  look  at  the  circumstances  attending,  and  persons 
composing  that  Assembly.  In  the  first  place,  that  body  comprised 
the  wisdom  and  piety  of  the  Presbyterian  Church;  and  in  the  next 
place  its  members  were  selected  by  their  constituents  with  special 
reference  to  the  difficulties  which  then  existed  in  the  Church. 

You  will  be  good  enough  to  recollect  that  the  General  Assembly 
was  complained  of  for  exercising  the  wisdom  and  power  of  which 
that  body  was,  by  the  constitution,  made  the  depository  for  the 
whole  Presbyterian  Church.  The  constitution  making  the  General 
Assembly  the  depository  of  the  concentrated  wisdom  and  power 
of  the  whole  church,  was  framed  by  their  best  and  wisest  men,  and 
all  who  have  adopted  it  as  their  constitution,  have  made  the  Gene- 
ral Assembly  the  depository  of  their  rights  as  Presbyterians. 

Do  you  suppose  that  such  men  as  composed  the  Assembly  of 
1837,  were  wilHng  to  prostitute  and  abuse  the  powers  thus  confer- 
red on  them?  Every  church  has  some  sort  of  a  General  Assembly 
in  which  resides  the  power  of  forming  disciplinary  rules  and  regi*» 


418 

lations  for  the  government  of  the  whole  of  the  subordinate  churches 
in  connexion  therewith.  There  is,  therefore,  nothing  peculiar  in 
the  power  claimed  for  the  General  Assembly.  So  it  has  been  ever 
since  the  times  of  the  primitive  church  in  the  days  of  the  apostles, 
when,  on  a  memorable  occasion,  the  whole  assembly  of  the  apostles 
and  elders  were  gathered  in  the  city  of  Jerusalem,  to  decide  the 
dispute  which  had  arisen  in  the  city  of  Antioch,  between  the  Jew- 
ish and  the  Gentile  proselytes  to  the  Christian  faith.  Every  church 
has  its  courts  of  final  appeal,  or  infallible  hierarchy. 

The  forms  of  Church  government  have  been  varied  in  almost 
endless  degrees,  from  the  simplicity  of  the  Quaker  to  the  gorgeous 
and  splendid  imagery  of  that  church  of  which  the  Roman  pontiff 
is  the  acknowledged  sovereign  and  spiritual  head;  but  in  them  all 
they  have  some  tribunal  whose  decisions  are  final.  And  what  is 
the  difference  as  to  name  or  form,  if,  as  they  believe,  God  applies 
himself  to  guide  them  in  the  right  course,  so  that  their  ultimate 
decisions  are  infallible,  as  the  Roman  Catholic  is  persuaded  that  the 
sovereign  pontifical  head  is  influenced  to  the  right  course  by  an  in- 
ternal sense.  Their  councils  have  so  decided,  because  they  deemed 
it  to  be  absolutely  necessary  that  the  appellate  tribunal  of  last  resort 
in  the  church  should  possess  the  attribute  of  infallibility  of  judg- 
ment concerning  matters  of  conscience.  But  before  this  attribute 
of  infallibility  was  conferred  on  the  pointifT,  the  councils  were  con- 
sidered as  spiritual  directors,  whose  decisions  was  binding  on  all 
the  members  of  the  church,  and  which  they  were  bound  to  obey  in 
all  good  conscience.  The  attribute  of  infallibility  was  for  a  time 
supposed  by  some  to  lie  in  a  state  council,  as  the  Council  of  Trent, 
or  the  Council  of  Constantinople,  which  was  summoned  and  held  by 
the  authority  of  the  emperor. 

These  state  councils  were  considered  as  the  dernier  resort,  in 
controversial  matters.  Martin  Luther  appealed  to  them,  when  in- 
volved in  serious  disputes  with  the  pope,  and  the  whole  of  the  mat- 
ters in  controversy  were  referred  to  the  arbitrament  of  the  council 
convened  at  Worms,  by  the  Emperor  of  Germany.  And  John  Cal- 
vin, who  is  considered  as  the  founder  of  Presbylerianism,  also  ap- 
pealed to  such  councils,  and  advised  the  reference  of  subjects  of 
dispute  to  their  arbitrament  and  decision.  If  they  were  not  consi- 
dered as  being  infallible,  no  confidence  could  be  placed  in  their  de- 
cisions, as  being  sanctioned  and  approved  of  God.  If  the  Presby- 
terian Church  vests  infallibility  anywhere,  it  certainly  is  in  its  Gene- 
ral Assembly.  Every  church  has  agreed  to  the  establishment  of  a 
body  of  this  kind ;  and  to  their  decisions,  in  relation  to  doctrines 
and  discipline,  all  the  members  of  the  church,  and  all  the  inferior 
judicatories  of  the  church,  are  bound  to  submit.  And  shall  we  for 
a  moment  suppose,  that  less  authority  is  vested  in  the  General  As- 
sembly of  the  Presbyterian  Church,  than  in  a  council  of  divines, 
called  together  by  the  civil  authority,  or  less  power  than  is  pos- 
sessed by  a  Baptist  Association,  a  Methodist  Conference,  or  an 
Episcopal  Convention?  It  cannot  be.  The  universal  practice  has 
been,  to  regard  with  reverence  the  decisions  of  such  bodies,  com- 
posed, as  they  are,  of  men  who  have  devoted  their  lives  to  endea- 
vours for  the  conversion  of  unbelievers  to  the  Christian  faith,  and 


410 

the  edification  of  the  church.    So  the  force  of  the  decisions  of  these 
general  councils,  by  whatever  name  they  may  be  called,  is  acknow- 
ledged by  their  respective   churches.      We  are  all   familiar  with 
these  facts.     We  all  know  that  the  decisions  of  all  such  bodies  are 
final,  as  regards  the  questions  submitted  to  them.     Their  decisions 
are  the  law  of  all  the  churches  over  which  their  respective  juris- 
diction extends.      I  need  scarcely  remind  you,  that  none  of  these 
councils  has  jurisdiction  in  reference  to  what  concerns  their  neigh- 
bours.     If  the   members  of  other  churches  do  wrong,  they  must 
leave  the  correction  of  that   wrong  to  the  proper  judicatories  of 
the  church  to  which  the  disorderly  members  belong.      One  church 
cannot  interfere  with  another.     It  is  by  the  consent  of  all  concern- 
ed, agreeing  to  the  constitution  of  their  respective  churches,  that 
this  power  of  final  decision  is  vested  in  the  highest  ecclesiastical 
court  of  each  denomination.      The   decision  of  every  council,  to 
which  parties  refer  a  matter  for  adjudication,  is  binding,  though 
it  be  a  mere  informal  reference  to  a  neighbour.     How  much  more, 
then,  the  decision  of  these  church  judicatories,  to  which  the  mem- 
bers have  committed  their  rights  and  powers  in  so  solemn  a  man- 
ner, and  bound  themselv^esto  submit  by  so  many  sacred  obligations. 
The  decisions  of  the  General  Assembly,  or  any  other  of  these 
general  councils,  is  as  binding  on  all  the  churches  and  congregations 
within  its  jurisdiction,  in  spiritual  affairs,  as  the  decision  of  a  state 
tribunal  in  civil  affairs.     All  are  bound  to  submit  to  such  decisions  ; 
though  the  situation  of  the  several  churches  in  this  republican  land, 
is  very  different  from  that  of  an  established  church,  which  is  closely 
connected  with  the  state.     In  such  a  church,  the  Episcopal  Church 
of  England,  for   example,  the  king,  or  head   of  tlie   state,  is   the 
acknowledged  head  of  the  church.     There,  the  British  parliament 
has   assumed  the  right  to  try  a  minister  for  an  infraction  of  his 
duties  as  a  minister  of  the  established  church,  and  may  even  pass 
sentence  of  suspension,  debarring  him  from  the  privilege  of  exer- 
cising the  clerical   functions:   as  indeed  was  actually  done,  in  at 
least  one  case  on  record.     But  the  disseverance  of  civil  from  ec- 
clesiastical jurisdiction,  puts  more  power  in  the  possession  of  the 
churches  in  this  country,  in  relation  to  spiritual  matters,  the  state 
being  constantly  debarred  from  interfering  wath  spiritual    affairs, 
as  fully  as  the  church  is  prohibited  from  intermeddling  with  civil 
affairs.     Happily  for  us,  the  connexion  between  church  and  state, 
which  in  the  old  world  has  been  for  ages  considered  as   being  es- 
sential to  the  very  existence  of  civil  government,  has  no  place  in 
our  country.     Here,  the  church  occupies  its  own  ground  ;  and  both 
it  and  the  civil  government  prosper,  without  an  improper  interfer- 
ence  with  each  other.     Each  is  sufficiently  powerful  in  its  own 
sphere,  to  maintain  and  enjoy  its  own  rights,  without  the  one  en- 
croaching upon  the  prerogatives  of  the  other.    We  understand  as 
little  of  the  reasons  for  the  differences  of  opinion  amongst  Chris- 
tians, as  we  do  of  the  sublime  doctrines  of  the  Christian  religion,  some 
of  which  are  admitted  to  be  mysterious,  by  the  members  of  the 
different  sects  themselves.     The  thunders  of  the  Vatican  are  not 
now  felt  throughout  all  Christendom.    If  uttered  at  all,  a  murmur- 


420 

ing  sound,  like  distant  thunder,  is  the  most  that  can  be  heard  in 
this  country.     The  effect  is  not  felt. 

The  members  of  the  Roman  Catholic  Church  are  bound  by  their 
decrees ;  but  none  others  are.  So  in  regard  to  Qvery  religious  de- 
nomination ;  the  power  of  the  church,  within  its  legitimate  pro- 
vince, is  felt  by  all,  and  will  be  felt  by  all,  whilst  she  acts  as  a  nur- 
sing tender  mother  towards  her  children.  We  have  indeed  all 
witnessed  the  effect  of  this  power,  whether  exercised  as  the  tender 
mother's  blessing,  or  as  the  withering  of  the  father's  curse.  De- 
pend upon  it,  the  influence  of  the  church  is  in  its  strictest  sense  the 
very  essence  of  power.  Their  influence  extends  through  all  the  re- 
lations of  society,  and  is  felt  in  the  governments  which  have  been 
instituted  among  men.  To  this  none  of  us  will  object,  whilst  that 
influence  is  exerted  independently,  and  without  any  interference 
with  the  civil  government,  though  it  is  no  less  powerful  than  the 
still  small  voice  which  arrested  the  prophet's  attention  when  he  stood 
at  the  entrance  of  Horeb's  cave. 

How  then  is  this  influence  exerted?  Having  no  aid  from  the  civil 
power  in  execution  of  their  decrees,  and  having  within  their  own 
power  no  civil  disabilities  or  penalties  to  inflict,  how  are  these 
church  judicatories  able  to  give  eflect  to  their  councils?  What  im- 
parts such  strength  to  this  bond  of  air?  It  is  neither  more  nor  less 
than  the  power  of  conscience.  Talk  to  the  profligate  and  profane 
man,  who  disregards  the  obligations  of  morality  and  contemns  vir- 
ous  principles,  about  the  decisions  of  these  ecclesiastical  councils, 
and  they  are  of  no  influence  with  him.  He  treats  them  with  per- 
fect contempt.  But  lead  him  under  the  influence  of  religious  con- 
siderations, bring  him  to  appreciate  his  obligations,  give  his  con- 
science to  the  church,  and  then  the  decisions  of  thai  church  hind 
him,  and  he  renders  a  ready  acquiescence.  It  is  thus  the  potency 
of  conscience  that  gives  eflect  to  the  decisions  of  ecclesiastical 
courts. 

The  churches  have  jurisdiction  over  spiritual  concerns.  The 
decrees  of  their  councils,  in  their  legitimate  sphere  of  operation, 
are  binding,  and  from  their  judgment  there  is  no  appeal  to  the 
secular  courts,  as  there  is  in  another  country,  from  which  we  have 
received  many  of  our  maxims  of  common  and  parliamentary  law. 
The  civil  courts  have  nothing  to  do  with  the  affairs  of  the  church, 
except  to  protect  all  the  members  as  citizens  ;  and,  certainly,  they 
have  the  same  right  to  protection,  as  other  citizens  have.  This 
cannot,  and  will  not  be  denied.  There  are  one  or  two  authorities 
which  I  will  read,  and,  if  they  do  not  sustain  me,  I  will  not,  like 
my  learned  friend,  threaten  to  throw  my  books  into  the  fire ;  be- 
cause, I  presume  that  you  would  rather  rest  on  law,  than  on  the 
mere  assertions  of  the  council.  I  will  show  you  what  is  the  law  in 
Europe,  and  particularly  in  England,  from  which  country  we  have 
derived  the  first  principles  of  our  jurisprudence.  There  the  govern- 
ment does  not  interfere,  and  even  in  Asia,  the  sovereign  will  does  not 
interfere  with  the  decrees  of  the  church.  When  we  come  down, 
in  the  page  of  history,  to  our  own  Pennsylvania,  we  find  that  the 
very  foundations  of  government  were  laid  in  this  state,  while  it  was  an 


421 

infant  colony,  on  the  principle  of  freedom  of  opinion,  and  liberty  of 
conscience.  The  principle  of  noninterference  with  the  rights  of 
conscience,  the  illustrious  founder  of  Pennsylvania,  the  great  and 
wise  William  Penn,  made  the  basis  of  all  law,  when  he  proclaimed 
to  ail  who  should  settle  in  the  colony  of  Pennsylvania,  that  no  man 
.should  be  molested,  nor  deprived  of  his  civil  rights,  on  account  of 
f)is  opinions  in  relation  to  religion  and  matters  of  conscience. 
Vattell,  also,  the  universal  authority  on  the  law  of  nations,  maintains 
Ihat  the  rights  of  conscience  are  sacred,  and  the  decrees  of  the 
church  should  not  be  interfered  with  bv  the  civil  power.  (Vattell, 
B.  I.  ch.  12,  sect.  VV3. 

Now,  applying  these  principles,  what  have  you  and  I  to  do  with 
the  exclusion  from  the  communion  table,  of  Presbyterians?  What 
with  any  decisions  of  the  General  Assembly  ?  Absolutely  nothing  ! 
We  contend  that  we  have,  as  the  highest  judicatory  of  the  Presby- 
terian Church,  all  the  powers  that  were  guarantied  to  the  Roman 
Catholic  Church,  by  the  law's  of  England,  before  the  reformation; 
except  so  far  as  they  are  modified  by  the  constitution  ol"  the  (Jnitcd 
Slates,  these  powers  being,  in  this  case,  of  course,  limited  to  our  own. 
members. 

The  power  of  the  church  may,  being  properly  exerted,  become 
like  the  light  of  the  sun,  which  extends  throughout  the  world,  dis- 
I)ensing    its    blessings   everywhere.      This   power    necessarily   in- 
cludes that,  of  dismissing  from  the  communion  all  who  refused  to 
obey  the  decisions  of  the  Presbyterian  Church,  as  expressed  by  the 
(jleneral  Assembly,  which  has  full  power  to  determine  all  questions 
in  relation  to  the  mysteries  of  religion,  as  connected  with  their  or- 
der.    Much  has  been  said  as  to  the  power  which  the  civil  courts 
have  over  ecclesiastical  decisions.     On  that  subject,  we  may  refer 
to  Judge  Duncan  (7  Sergeant  and  Rawle,  page  557)  where  the  po- 
sition is  distinctly  laid  down,  that  each  church  having  its  platform, 
that  platform  is  its  own,  and  their  decisions  are  binding.     So  that 
wc  can  only  look  at  the  facts  whether  Presbyterians,  &c.  have 
kept  to  their  own  jurisdiction.     "It  is  the  part  of  a  good  Christian 
t(»  submit  to  the  decisions  of  the  church."     A  little  further  forward 
the  same  expressions  are  used  by  the  Chief  Justice  of  Pennsylvania, 
I  am  thus  bringing  to  your  minds  what  the  law  is  in  relation  to  the 
j)resent  case.     Another  authority  is  the  decision  of  the  Supreme 
Court  of  New  York  (9  Wendell,  page  400,  Field  vs.  Field) :  "  So 
long  as  the  conditions  (of  their  association)  are  complied  with,  the 
courts  have  no  right  to  interfere."     Thus,  they  all  declare  that  the 
courts  of  law  are  incompetent  to  interfere  with  the  decisions  of  the 
ecclesiastical  courts.     Had  the  General  Assembly  undertaken  to 
inflict  fines  or  imprisonment  for  noncompliance  with  its  mandates, 
or  to  take  the  property  of  individuals  on  account  of  their  refusal, 
and  for  the  purpose  of  compelling  them  to  a  submission  to  the  de- 
crees of  the  church;  the  civil  courts  could  then  interfere,  and  they 
ought  of  right  to  interfere.     For  unlimited  as  are  the  rights  and 
powers  of  the  church  in  regard  to  ecclesiastical  matters,  the  power 
of  inflicting  fines  and  imprisonment,  or  any  other  penalty,  except 
merely  ecclesiastical  censure  and  exclusion  from  the  church,  does 

36 


422 

not  belong  to  them.  Such  powers  belong  to  the  civil  government, 
which  is  constitutionally  prohibited  from  inquiring  into  the  opinions 
of  the  citizens  with  regard  to  religion.  Should  the  church  there- 
fore undertake  to  interfere  with  the  civil  power  of  the  state,  it 
would  overstep  its  proper  bounds.  But  happily  the  constitution  of 
our  country  wisely  prohibits  both  the  church  and  the  state  from 
transcending  their  proper  bounds,  and  thus  encroaching  on  the 
rights  of  each  other.  Happily,  the  civil  power  is  restrained  from 
interfering  with  the  actual  and  positive  rights  of  the  church,  as  well 
as  the  church  from  interfering  with  civil  rights. 

The  General  Assembly  is  an  ecclesiastical  assembly,  and  it  is 
granted  that  by  the  constitution  it  has  no  temporal  power.  It  has 
no  power  to  inflict  penalties  of  a  temporal  character  in  order  to 
compel  any  to  conform  to  its  requisitions.  But  when  they  have 
agreed  on  any  thing  in  relation  to  spiritual  matters,  however  con- 
trary it  may  be  to  human  laws,  the  civil  courts  cannot  interpose, 
unless  such  decisions  of  the  church  are  an  infringement  on  the  civil 
power.  So  far  indeed,  it  is  not  difficult  to  get  over  what  at  first 
view  may  appear  to  be  a  contradiction.  No  church  establishment 
can  exercise  or  assume,  in  this  country,  the  civil  jurisdiction,  which 
belongs  to  the  state,  and  which  the  state  alone  can  exercise;  and 
the  state,  on  the  other  hand,  can  in  no  case  interfere  with  religious 
establishijnents,  while  they  confine  themselves  to  the  spiritual  ati'airs 
of  their  own  church.  It  is  the  right  of  each  church  to  make  its 
own  disciplinary  regulations,  to  prescribe  what  shall  be  required  of 
its  members,  spiritually  and  morally ;  and  with  these  church  regu- 
lations the  civil  power  ought  not  to  interfere.  But  should  such 
church  establishments  undertake  to  exercise  a  temporal  power, 
they  would  then  be  obnoxious  to  the  charge  of  interference  with 
the  powers  of  the  civil  government,  which  is  not  to  be  permitted. 
The  church  has  a  right  to  make  rules  or  laws  for  its  own  govern- 
ment, and  every  member  is  morally  bound  to  submit  thereto,  be- 
cause he  has  chosen  to  become  a  member  of  that  church  with  the 
knowledge  of  what  her  faith  and  practice  was,  and  it  is  impossible 
for  the  state  to  interfere  with  these  legitimate  concerns  of  any 
church.  Such  an  interference  by  a  temporal  or  civil  power  would 
be  a  departure  from  the  first  principles  of  our  republican  govern- 
ment. In  support  of  this  position  we  have  the  high  authority  of  the 
present  Chief  Justice  of  Pennsylvania,  Judge  Gibson.  (5  Watts,  48.) 
Members  of  the  church  have  nothing  to  do,  but  voluntarily  to  de- 
part, if  they  will  not  submit  to  the  rules,  regulations  and  decisions 
of  the  church.  They  may  go  whenever  they  please,  for  no  church 
can  compel  them  to  remain  in  its  communion  against  iheir  wills. 
The  church  cannot  extend  its  penal  inflictions  beyond  excommuni- 
cation from  church  fellowship.  This  is  the  ultimatum  of  its  power. 
And  though  it  is  presumed  that  every  man  qhooses  to  belong  to 
some  church,  yet  there  is  no  compulsion,  and  he  may  not  belong  to 
any  if  he  does  not  choose  so  to  do.  But  most  good  citizens  will 
choose  to  belong  to  some  church,  in  order  that  they  may  enjoy  the 
advantages  of  joining  in  the  social  and  public  worship  of  Almighty 
God.    Every  one  is  at  liberty  to  belong  to  what  church  he  pleases. 


423 

And  if  he  belong  to  any  church,  he  must  contribute  to  the  support 
of  that  church  whilst  he  is  a  member  thereof,  and  is  morally  bound 
to  comply  with  its  disciplinary  regulations  and  decisions.  Or  if  he 
belong  to  none,  and  consequently  in  religious  matters  is  perfectly 
free  from  the  constraint  of  any,  he  is  not  the  less  bound  lo  render 
homage  to  God  according  to  the  dictates  of  his  conscience,  though, 
unless  he  be  a  member  of  the  church,  he  cannot  be  entitled  to  its 
privileges,  and  must  forego  the  advantages  arising  from  the  admin- 
istration of  the  sacraments  and  the  communion  of  the  church.  But 
there  is  no  legal  obligation  resting  on  the  citizen  to  enter  any 
church  at  all,  or  to  remain  within  its  pale  any  longer  than  he 
chooses. 

Over  those  who  do  belong  to  the  church,  however,  her  power  is 
supreme,  her  decisions  binding,  final,  and  without  appeal  to  the  civil 
tribunals,  in  relation  to  all  matters  of  spiritual  concernment.  So 
long  as  the  church  adheres  to  her  own  principles,  no  civil  court 
can  invalidate  her  determinations.  So  far  we  have  no  disagree- 
ment. We  all  rejoice  in  this  wise  arrangement  in  relation  to  these' 
matters  in  our  country.  The  members  of  the  church  are  such  on 
the  principle  of  voluntary  association  ;  and  when  the  powers  of  any 
church  are  exercised  in  accordance  with  the  principles  on  which 
they  have  thus  voluntarily  associated,  the  civil  courts,  the  judicial 
tribunals  of  the  state,  cannot  interfere  with  them.  To  this  effect  we 
have  a  decision  5th  Watts  4.3,  that  "  when  the  church  power  is 
exercised  according  to  the  appropriate  jurisdiction  of  the  church, 
the  courts  of  law  cannot  touch  them.  There  has  perhaps  been  a 
decision  in  Massachusetts  of  a  different  character.  But,  such  is 
the  law  of  Pennsylvania,  and  of  every  other  state  of  the  American 
Union  excepting  Massachusetts,  where,  as  was  the  case  till  recent- 
ly in  Connecticut,  the  law  requires  that  every  man  shall  contribute 
to  the  support  of  some  church,  even  if  he  does  not  attend  worship 
in  any.  This  laiv  was  among  the  early  enactments  of  the  pilgrim 
fathers  of  New  Enorland.  Whether  it  is  a  wise  regulation  in  the 
existing  state  of  society,  I  will  not  now  undertake  to  determine.  I 
leave  that  to  the  good  people  of  the  Bay  State. 

Well,  gentlemen,  we  proceed  to  inquire  what  sort  of  power  had 
the  General  Assembly?  What  but  ecclesiastical  legislative  power? 
It  was  not  strictly  legislative  nor  judicial,  like  civil  power;  but, 
for  church  purposes,  it  was  both.  We  maintain  that  there  is  no 
power  in  church  or  state  which  can  compel  any  man  to  enter  the 
church.  But  we  assert  that  the  whole  power  of  the  Presbyterian 
Church  was  vested  in  this  really  powerful  General  Assembly.  Had 
it  not  legislative  powers?  It  certainly  had,  over  all  the  churches  of 
the  Presbyterian  communion.  And  whence  indeed  came  the  idea 
which  has  been  so  much  dwelt  on  by  the  opposite  party,  that  the 
General  Assembly  had  no  legislative  power?  Whence,  except  that 
the  term  judiciary  or  judicatory  is  applied  to  it  and  to  all  the 
subordinate  bodies  of  the  Presbyterian  Church.  I  see  nothing  but 
the  mere  sound  of  the  name,  on  which  to  build  this  presumption. 
But  this  is  surely  insufficient.  Judicatory,  say  they,  means  court, 
and  not  legislature.  Well,  the  very  word  court  is  itself  applicable 
to  a  legislative  body.     The  term  court  originally  means  ad  off,  as 


424 

the  yard  of  a  country  house  is  cut  off  or  enclosed  from  the  adjoin- 
ing premises,  and  called  a  court.  So  we  speak  of  certain  peculiar 
sections  of  the  city,  as,  for  instance,  Ranstead  court.  If  from  their 
sessions  being  held  in  such  places,  it  came  to  pass  that  certain 
legislatures  ol  state  are  denominated  courts,  then  there  would  seem 
a  peculiar  fitness  in  the  coincidence  that  these  proceedings  of  the 
General  Assembly,  which  are  styled  acts  of  legislative  power,  oc- 
curred in  the  church  in  Ranstead  court.  But  however  that  may 
be,  certain  it  is  that  they  speak  of  their  legislature  in  England  as  of 
the  high  court  of  Parliament,  and  the  high  court  of  Massachusetts 
is  its  legislature;  and  I  might  probably  cite  oiher  examples  o^  the 
same  kind. 

But  by  whatever  term  we  designate  the  powers  of  the  General 
Assembly,  its  jurisdiction  was  strictly  ecclesiastical,  and  not  tempo- 
ral, because  the  power  of  temporal  or  civil  legislation  is  vested 
in  the  legislature  of  the  state;  and  as  the  judicial  power  is  vested 
in  the  courts   of  law,  so  the  ecclesiastical  power  of  the  church 
resides  in  the  judicatories  of  the  church.     The  General  Assembly 
cannot  send  out  decrees  for  temporal  effect,  for  such  a  decree  of 
the  church  would  not  be  binding  on  any  civil  officer.     Nor  could  it 
be  further  binding  on  any  person,  than  to  command  and  compel 
offenders  to  depart  from  the  church.     So  far  the  decrees  of  the 
church  are  binding,  and  these  are  the  circumstances  under  which  I 
said  that  we  undoubtedly  had  jurisdiction,  and  with  which  the  civil 
courts  cannot  interfere.     The  whole  power  of  the   Presbyterian 
Church  is  concentrated  in  the  Genera!  Assenibly.     Notwithstand- 
ing, that  supreme  judicatory  of  the  church  has  entrusted  the  exer- 
cise of  this  power,  in  many  cases,  to  tlie  inferiur  church  judicatories, 
the  synods,  presbyteries  and  church  sessions,  yet,  as  the  General 
Assembly  exercises  an  appellate  jurisdiction  over  all  these  inferior 
judicatories,  and  is  the  tribunal  of  dernier  resort,  the  whole  power 
of  those  judicatories  concentrates  in  the  General  ^ssembly  as  the 
primeval  fountain  of  ecclesiastical  power.     It  exercises  the  same 
power  over  the  decisions  of  the  inferior  judicatories  that  the  Su- 
preme Court  in  this  stale  exercises  over  the  decisions  of  the  inferior 
courts.     And  you  cannot  arraign  the  supreme  court,  on  an  accusa- 
tion of  abusing  its  power  by  reviewing  the  proceedings  of  the  infe- 
rior court;  whilst  it  would   undoubtedly   be   an   abuse  of  power 
should  the  inferior  refuse  to  allow  an  appeal  to  be  taken  from  their 
judgment.     I  think  there  can  be  no  doubt  of  the  correctness  of  the 
principles  which  I  have  laid  down.     We  have  also  the  authority  of 
Blackstone   in   support  of  our  claim.     Blackstone  says  that  such 
power  is  ex[)ressly  acknowledged  to  belong:  to  the  church  by  act  of 
Parliament.    I  said  that  in  reference  to  itself  the  church  has  power. 
I  do  not  mean  that  it  can  exercise  the  civil  power  of  the  state,  as 
when  the  ministers  of  the  church  sat  in  the  Scottish  Parliament  in 
Holyrood  House.     It  cannot  be  contended  that  the  power  claimed 
for  this  church  is  anomalous;  as  the  only  difference  which  I  see 
between  the  power  of  the  church  in  this  and  in  other  countries,  is, 
that  there  the  church  exercises  temporal  as  well  as  spiritual  juris- 
diction, and  here  spiritual  jurisdiction  only.     But  the  power  which 


425 

we  claim  exists  in  the  church  every  where.  It  is  universal,  and 
means  every  thing.  It  is  common  law,  because  it  is  thus  univer- 
sally adopted  by  the  common  sense  of  all  mankind.  We  all  feel  its 
influence,  whether  we  are  willing  to  acknowledge  it  or  not.  Sir 
Matthew  Hale,  who  was  one  of  the  best,  most  upright  and  enlight- 
ened judges  that  the  world  ever  produced,  adds  the  weight  of  his 
authority  to  those  to  which  I  have  already  referred,  in  support  of 
the  view  that  I  have  taken.  The  great  principles  of  the  common 
law  place  the  power  in  the  General  Assembly,  over  the  synods  and 
presbyteries  of  its  own  creation,  that  the  legislature  has  plnced  in 
the  supreme  court  over  the  several  inferior  courts.  The  supreme 
court  is  the  highest  judicial  tribunal  of  the  state,  and  in  like  manner 
the  General  Assembly  is  the  highest  judicatory  of  the  Presbyterian 
Church;  and  so  it  must  ever  be  in  every  church  in  this  country:  it 
must  have  a  tribunal  from  which  there  is  no  appeal.  The  words 
have  been  rung  in  our  ears  again  and  again,  that  the  conduct  of  the 
General  Assembly  of  1837  was  unjust  and  arbitrary.  But  that  of 
itself  is  no  reason  why  the  civil  courts  should  interfere.  I  admit 
that  the  civil  power  may  of  right  and  ought  to  interfere  to  suppress 
all  outrages  and  infractions  of  the  civil  law.  But  suppose  that  these 
two  parties  in  the  church  had  gone  on  debating,  fighting,  tearing 
and  devouring  each  other,  we  present  the  question  to  you:  Could 
the  civil  courts  exercise  a  power  over  them  whilst  they  confined 
themselves  to  the  ecclesiastical  concerns  of  the  church? 

Again  we  present  to  you  the  manner  in  which  the  judicatories  of 
the  Presbyterian  Church  exercise  the  judicial  power  with  which 
they  are  clothed.  The  forms  of  proceeding  are  very  different  from 
those  used  in  the  transaction  of  common  business.  When  those 
judicatories  are  acting  in  the  exercise  of  judicial  powers,  the  form 
of  proceeding  is  one  which  is  very  uncommon  in  this  country,  and, 
of  course,  different  from  their  own  forms  of  proceeding  in  other 
cases.  I  will  not  read  the  rule  which  requires  the  observance  of 
this  particular  form,  as  it  was  fully  presented  to  you  by  my  col- 
league. But  the  rule  requires  that  the  Assembly  should  appoint  a 
judicial  committee;  and  as  in  Congress,  to  that  judicial  committee 
the  examination  and  preparation  for  trial  of  appeals  and  other  judi- 
cial business  is  always  referred.  And  always,  when  the  General 
Assembly  resolves  itself  into  a  judicial  attitude,  by  taking  up  judi- 
cial business,  a  special  appeal  is  made  to  the  Throne  of  Grace,  and 
the  blessing  of  the  divine  power  on  their  proceedings  is  solemnly 
invoked.  The  whole  proceeding  is  more  solemn  than  is  usual  in 
other  cases.  I  have  not  my  book  to  refer  to;  it  has  been  taken 
away  by  accident;  but  a  case  is  reported  in  1832,  which  exhibits 
this  solemn  form  of  proceeding,  when,  in  a  case  of  judicial  trial  be- 
fore the  Assembly,  it  was  scrupulously  observed.  As  I  said,  the 
mode  of  proceeding  in  such  cases  is  altogether  different  from  that 
pursued  in  the  transaction  of  the  ordinary  business  of  these  bodies. 
Another  example  is  furnished  in  the  case  of  Dr.  Riley,  in  the  Gene- 
ral Assembly  of  1837,  as  appears  by  their  minutes,  page  429.  The 
moderator  reminded  the  members  of  their  high  character  as  a 
court  of  Jesus  Christ,  and  the  solemn  duty  in  which  they  were 

36* 


426 

about  to  act.     You  may  take  up  any  one  of  the  minutes  of  the 
General  Assemblies  wliich  have  been  held  since  the  first  institution 
of  that  body  in  17S9,  and  you  will  find,  in  every  case  of  judicial 
trials,  that  the  mode  of  proceeding  is  similar.     I  took  up  this,  by 
mere  accident,  as  the  first  copy  of  the  minutes  which  fell  under  my 
eye  here  on  the  table,  and  tins  case  immediately  presented  itself. 
As  I  said,  similar  cases  occur  in  then)  all.    And  not  only  is  this  the 
mode  of  proceeding  in  the  General  Assembly,  but  in  all  the  judica- 
tories of  the  church,  from  the  highest  to  the  lowest  of  them.  Others 
of  the  judicatories  fall  indeed  far  short  of  the  omnipotence  of  par- 
liament, which  is  vested  in  ihc  General  Assembly,  yet  there  is  jus- 
lice  in  carrying  through  this  principle  in  tfiern  all.     Another  paper 
of  this  character  has  accidenially  come  into  my  hands.     1  refer  to 
page  132  of  the  minutes  of  1832,  where  a  similar  record  occurs. 
Indeed,  we  may  take  up  any  of  these  minutes  at  a  venture,  and  find 
the  same  thing.     Thus  you  see,  gentlemen,  that  the  form  of  pro- 
ceeding is  not  the  form  used  in  legislative  proceedings  in  the  Gene- 
ral Assembly;  but  the  principle  is  not  confined  to  that  assembly, 
but  may  be  viewed  as  extending  to  all  similar  bodies  all  over  the 
world.     It  is  not  confined  to  Presbyterians. 

xAgain,  in  these  minutes  of  1832.  we  find  examples  of  business, 
which  we  may  consider  as  legislative.  Here  are  overtures  Nos.  1, 
2,  3,  &c.,  all  of  them  relating  to  business  not  judicial.  All  these 
are  in  their  character  legislative  acts.  In  page  325  of  the  same 
minutes  there  is  still  more  to  the  same  purport.  Here  is  also  a  re- 
solution recommending  a  season  of  fasting  and  prayer,  and  inviting 
other  denominations  to  participate.  Here  are  also  petitions,  which 
of  course  are  addressed  to  the  Assembly  as  a  legislative,  and  not 
as  a  judicial  court.  But  the  Assembly  also  originates  business,  and 
acts  on  it,  itself;  something  certainly  very  unlike  a  court  of  justice. 
These  diti'erent  forms  proceed  from  a  principle  in  the  constitution 
of  parliamentary  bodies,  and  it  is  by  these  forms  that  the  ends  of  jus- 
tice are  reached,  and  the  appropriate  ordinances  enacted,  and  though 
in  the  Presbyterian  Church  it  is  not  exactly  as  in  some  others,  they 
pass  their  ordinances  as  they  are  applied  for,  but  they  cannot  extend 
their  power  in  the  enactment  of  laws,  without  the  desire  of  the  con- 
stituent judicatories. 

I  will  now  take  up  the  Confession  of  Faith,  which  contains  the 
Laws  of  Government  of  the  Presbyterian  Church,  some  of  which 
have  been  already  adverted  to.  Confession  of  Faith,  chapter  31, 
section  1  and  2. 

"  For  the  better  government  and  further  edification  of  the 
church,  there  ought  to  be  such  assemblies  as  are  commonly  called 
synods  or  councils :  and  it  belongeth  to  the  overseers  and  other 
rulers  of  the  particular  churches,  by  virtue  of  their  office,  and 
the  power  which  Christ  hath  given  them  for  edification,  and  not  for 
destruction,  to  appoint  such  assemblies ;  and  to  convene  together  in 
them,  as  often  as  they  shall  judge  it  expedient  for  the  good  of  the 
church." 

II.  "  It  belongeth  to  synods  and  councils,  ministerially,  to  deter- 
mine controversies  of  faith  and  cases  of  conscience ;  to  set  down 


427 

rules  and  directions  for  the  better  ordering  of  the  public  worship  of 
God,  and  government  of  his  chuich ;  to  receive  complaints  in  cases 
of  mal-administration,  and  authoritatively  to  determine  the  same: 
which  decrees  and  determinations,  if  consonant  to  the  word  of  God, 
are  to  be  received  with  reverence  and  submission,  not  only  for  their 
agreement  with  the  word,  but  also  for  tlie  power  whereby  they  are 
made,  as  being  an  ordinance  of  God,  appointed  thereunto  in  his 
word." 

Now  it  would  be  difficult  to  embrace  in  half  a  dozen  words  any 
thing  more  comprehensive  or  explicit  than  this,  "to  set  down  rules 
and  directions  for  the  better  ordering  of  the  worship  of  God,  and 
government  of  his  church."  Not  being  much  of  a  theologian,  I,  at 
least,  could  not  suggest  more  in  a  few  words  than  is  liere  stated  of 
a  quasi  legislative  character.  There  is  the  highest  authority  of  the 
Presbyterian  Church,  using  the  same  words  as  are  used  to  express 
legislative  powers  by  the  British  Parliament.  So  in  page  363  of 
the  same  book;  in  the  12th  Chapter  of  the  Form  of  Government, 
the  General  Assembly  is  described  as  the  highest  judicature  of  the 
Presbyterian  Church,  as  purely  representative  in  its  character,  com- 
posed by  delegation,  &c.  And  does  not  this  language  indicate  to 
every  reader  the  character  of  a  legislative  body?  In  the  5th  sec- 
tion of  this  12th  chapter,  also,  it  is  said: 

"To  the  General  Assembly  also  belongs  the  power  of  decid- 
ing in  all  controversies  respecting  doctrine  and  discipline;  of  re- 
proving, warning,  or  bearing  testimony  against  error  in  doctrine, 
or  immorality  in  practice,  in  any  church,  presbytery,  or  synod;  of 
erecting  new  synods  when  it  may  be  judged  necessary  ;  of  super- 
intending the  concerns  of  the  whole  church;  of  corresponding  with 
foreign  churches,  on  such  terms  as  may  be  agreed  upon  by  the 
Assembly  and  the  corresponding  body;  of  suppressing  schismalicai 
contentions  and  disputations ;  and,  in  general,  of  recommending  and 
attempting  reformation  of  manners,  and  the  promotion  of  charity, 
truth,  and  holiness,  through  all  the  churches  under  their  care." 

Again,  in  the  4th  section  of  the  same  chapter: 

"The  General  Assembly  shall  receive  and  issue  all  appeals  and 
references,  which  may  be  regularly  brought  before  them  from 
the  inferior  judicatories.  They  shall  review  the  records  of  every 
synod,  and  approve  or  censure  them  :  they  shall  give  their  advice 
and  instruction  in  all  cases  submitted  to  them  in  conformity  with 
the  constitution  of  the  church  ;  and  they  shall  constitute  the  bond  of 
union,  peace,  correspondence,  and  mutual  confidence,  among  all 
our  churches." 

Now  I  have  fully  established  what  I  proposed,  viz.  that  the  Gene- 
ral Assembly  possesses,  strictly  speaking,  neither  legislative  nor 
judicial  powers,  but  ecclesiastically  both.  The  articles  of  the  Form 
of  Government  are,  throughout,  indicative  of  the  power  of  the 
General  Assembly,  in  accordance  with  my  position,  and  that  so 
much  legislative  power  should  be  given  to  the  Assembly,  is  perfect- 
ly natural.  But  whether  it  were  so  or  not,  here  is  our  authority. 
I  now  speak  of  the  terms  used  in  the  Confession  of  Faith  of  the 
Presbyterian  Church ;    and  they  are  sufficient   for  our  purpose. 


428 

Though  the  language  applies  to  other  bodies  in  a  limited  degree, 
yet  in  this  highest  tribunal  of  the  church  the  power  is  unlimited,  as 
to  the  administration  of  the  discipline  of  the  church.  So  much  for 
the  powers  and  character  of  the  General  Assembly. 

Well,  what  were  the  proceedings  of  that  body  in  1837,  which  are 
so  much  complained  of  I  In  form  they  are  merely  a  series  of  reso- 
lutions standing  upon  the  minutes.  They  were,  in  substance  and 
form  too,  a  mere  discontinuance  of  "a  regulation,"  for  such  was 
the  Plan  of  Union  of  1801.  The  Assembly  had  the  power  to 
bring  those  regulations  to  a  termination  by  a  suspension  of  that 
plan,  which  was  as  subject  to  abrogation  as  any  other  regulation. 
It  was  the  terminating  of  an  agreement,  which  they  might  as  well 
terminate  as  an  agreement  to  ring  a  bell,  or  do  any  other  thing. 
It  was  terminating  an  illegal  agreement,  an  agreement  with  a 
heterogeneous  body,  which  could  not  be  assimilated  to  the  General 
Assembly.  It  is  a  general  principle  with  all  deliberative  bodies, 
that  they  have  a  right  to  terminate  the  existence  of  their  own  ses- 
sions, and  of  all  legislative  bodies,  that  they  can  repeal  their  own 
acts.  It  would  be  outrageous  indeed  if  they  could  not.  Every  de- 
liberative body  has  the  power  and  the  right  to  sit  on  its  own  ad- 
journment, and  to  make  its  sessions  of  what  length  the  members 
please.  The  principle  is  universal,  extending  through  all  delibera- 
tive bodies.  It  prevails  in  the  Congress  of  the  United  Slates,  as 
well  as  in  the  General  Assembly  of  the  Presbyterian  Church. 

The  power  to  decide  when  was  the  right  time  to  terminate  its 
session,  or  to  repeal  a  former  act,  was  certainly  inherent  in  the 
church,  and  was  vested  by  general  consent  in  the  General  Assem- 
bly. The  Presbyterian  Church  had  been  assiduously  engaged  for 
many  years  in  extending  blessings  to  Congregationalists  in  the  new 
settlements.  And  thus  the  Congregationalists  had  grown  up,  and 
grown  strong  under  the  superintending  care  of  the  General  Assem- 
bly. And  had  not  the  General  Assembly  power  to  determine  when 
the  connexion  between  them  should  cease?  It  would  be  absurd  to 
say  that  they  had  not.  It  would  be  outrageous  to  say  that  they 
could  not  say  to  these  Congregationalists,  "  we  have  done  what  you 
needed,  you  are  now  strong  enough  to  help  yourselves."  They  had 
a  right  to  dissolve  the  connexion,  without  assigning  any  reason  for 
declining  to  continue  what  had  been  abused.  It  was  only  opening 
the  window,  as  "  my  uncle  Toby"  did  to  the  poor  fly,  saying,  "  there 
is  space  enough  in  the  wide  world  for  us  both."  The  proceeding 
of  the  General  Assembly  of  1837,  speaking  in  a  somewhat  different 
sense,  was  a  proceeding  in  conformity  to  the  precepts  of  the  gospel 
of  peace.  It  was  founded  on  principle,  and  designed  to  terminate 
strife.  They  acted  wisely  in  thus  adopting  the  language  of  the 
great  patriarch  Abraham  to  his  nephew  Lot,  *' the  land  is  not  able 
to  bear  us  both,  but  let  there  be  no  strife  between  us,  for  we  are 
brethren;  is  not  the  whole  land  before  you?  Therefore  separate 
yourselves  from  us,  either  to  the  right  hand  or  to  the  left;  if  you 
will  take  the  right  hand,  we  will  go  to  the  left;  or,  if  you  prefer 
taking  the  left  hand,  then  we  will  depart  to  the  right." 

The  proposals  of  the  General  Assembly  were  similar  both  in  the 


429 

letter  and  in  the  spirit  of  them ;  and  as  they  refused,  there  was  a 
necessity  for  removing  or  disowning  the  recreant  synods,  in  order 
to  end  the  strife.  It  was  then  a  disowning  in  part,  and  in  part  re- 
modelling them,  regidating  them,  as  they  had  a  perfect  right  to  do, 
for  it  would  he  inconsistent  to  say  that  the  General  Assembly  had 
not  the  power  of  regulating  the  four  synods,  when  they  had  a  right 
to  regulate  the  internal  afl'airs  of  the  whole  Presbyterian  Church, 
and  every  part  and  parcel  thereof. 

The  Plan  of  Union  of  1801  did  great  injustice  to  the  Presbyte- 
rian Church.  Though  it  was  intended  for  good,  yet  it  did  mischief 
instead  of  good,  bringing  in  Congregationalism  and  heresy  into  the 
church.  But,  the  vi'hole  power  of  the  Presbyterian  Church  being 
concentrated  in  the  General  Assembly,  they  had  power  to  organize 
a  General  Assembly  of  a  similar  nature,  as  the  one  to  which  the 
act  of  incorporation  was  granted  by  the  legislature;  and  that  was  a 
purely  Presbyterian  General  Assetnbly;  holding  to  the  Calvinistic 
creed  without  any  intermixture  of  Congregationalism,  Swedenbor- 
gianism,  or  any  other  ism  or  heresy.  The  Presbyterian  Church 
still  infiexibly  adheres  to  the  Westminster  Confession  of  Faith  whicli 
their  ancestors  brought  over  with  them  to  our  land,  and  their  Form 
of  Church  government  is  founded  on  the  same  model  of  republican- 
ism as  our  republican  government.  It  is  in  strict  conformity  v^ith 
the  law  of  Pennsylvania,  which  has  been  read  and  will  be  read, 
again.  The  General  Assembly  has  power  to  dissolve  and  re-orga- 
nize both  the  synods  and  the  presbyteries  at  pleasure;  and  the  four 
synods  of  Utica,  Geneva,  Genessee,  and  the  Western  Reserve,  de- 
pend upon  it,  were  mere  eleemosynary  institutions,  which  grew  up 
under  that  system  of  universal  charity,  which  permits  the  ministers 
of  the  Presbyterian  Church  to  preach  the  doctrines  of  the  church  to 
all  persons,  and  which  spirit  has  characterized  the  Presbyterian 
Church  since  her  first  institution;  as  is  manifested  in  her  zeal  for 
the  propagation  of  the  doctrines  of  the  gospel,  by  sending  out  mis- 
sionaries at  great  expense  to  labour  without  any  reward,  except  the 
satisfaction  of  well-doing. 

The  very  origin  of  the  organization  of  this  respectable  body  ap- 
pears to  have  proceeded  from  the  same  spirit.  It  was,  because  con- 
ceived "to  be  most  conducive  to  the  interests  of  religion,  that  the 
synod,"  (of  New  York  and  Philadelphia,)  then  the  highest  judica- 
tory of  the  Presbyterian  Church,  was,  in  1780,  "divided  into  four 
synods;"  as  we  learn  from  the  Digest,  page  37. 

Here  again  I  would  have  you  notice,  gentlemen,  that  synods  pre 
ceded  the  General  Assembly.  The  preliminary  proceedings  for 
procuring  the  charter  of  the  General  Assembly  show  that  the  object 
of  that  charter  was  to  provide  for  the  safe  keeping  and  disposal  of 
certain  charitable  funds  entrusted  to  the  General  Assembly.  The 
corporation  is  of  a  peculiar  character,  in  this,  that  the  trustees  are 
not  of  the  essence  of  the  body  for  whose  benefit  the  incorporation 
■was  obtained.  That  is  the  General  Assembly,  or  the  ministers  and 
elders  of  the  Presbyterian  (church. 

The  General  Assembly  is  composed  of  the  ministers  and  elders, 
who,  by  the  act  of  incorporation,  have  the  appointment  of  those 


430 

trustees.  So  that  the  General  Assembly  is  in  the  strictest  sense 
the  corporation,  yet  as  the  legal  corporation  is  styled  "  The 
Trustees  of  the  Ministers  and  Elders  of  the  Presbyterian  Church 
in  the  United  States  of  America,"  and  as  the  act  of  incorporation 
itself  placed  the  trustees  under  their  control,  the  General  Assembly 
may  be  called  (as  it  has  been)  a  quasi  corporation ;  and  this  quasi 
corporation  has  more  power  than  the  corporation  itself.  The 
power  vested  is  in  reality  in  the  General  Assembly.  The  trustees 
are  the  mere  hinge  on  which  the  corporate  power  which  the  law 
gives  the  General  Assembly  turns.  This  General  Assembly  was 
originally  composed  of  synods,  and,  but  for  its  relation  to  law,  by 
the  incorporation  of  these  trustees,  might  return  to  synods  again. 
As  the  Assembly  was  originally  constituted,  by  one  synod  dividing 
itself  into  four,  and  the  representatives  of  the  presbyteries  com- 
posing those  four  synods  meeting  in  General  Assembly,  so,  but  for 
its  legal  relations  by  the  charter,  the  Assembly  might,  if  it  should 
see  fit,  again  be  merged  in  the  synods  embraced  in  its  communion. 

True!  [in  reply  to  a  suggestion  from  the  court,]  presbyteries 
were  in  their  existence  antecedent  to  the  synods,  and  the  General 
Assembly,  under  the  constitution  of  the  church,  is  composed  directly 
of  a  delegation  from  the  presbyteries,  and  not  from  synods — but, 
in  the  account  given  of  the  division  of  the  Synod  of  New  York  and 
Philadelphia  into  four  synods,  for  the  purpose  of  erecting  the  Gene- 
ral Assembly  it  is  said,  (Digest,  page  38,)  "that  out  of  the  body 
of  these  synods  a  General  Assembly  shall  be  constituted,"  by  every 
presbytery  deputing  commissioners,  &c.  Moreover,  the  General 
Assembly  has  the  power  of  changing  the  ratio  of  representation  of 
presbyteries  in  the  Assembly,  and  of  changing  the  proportionate 
representation  of  different  portions  of  the  church,  by  dissolving 
presbyteries  and  annexing  their  members  to  others,  either  in  the 
same  or  in  different  synods.  Thus  the  ratio  of  representation  has 
been  changed  from  six  to  twenty-four,  showing  that  the  right 
existed  in  the  General  Assembly  to  alter  the  representation  from 
time  to  time  as  they  shall  see  fit. 

I  am  told  that  the  alteration  of  the  ratio  of  representation  has 
been  made  by  the  presbyteries  themselves,  it  being  done  by  amend- 
ments to  the  constitution.  Well,  be  it  so.  But  the  thing  is  in  the 
control  of  the  General  Assembly,  as  they  can  affect,  as  I  have  said, 
the  proportional  representation  by  the  dissolution  of  presbyteries 
and  synods. 

Thus,  the  very  basis  of  representation  in  the  General  Assembly, 
as  it  is  now  organized,  consists  of  a  delegation  from  presbyteries 
belonging  to  synods.  The  minutes  of  1834  show,  that  the  Presby- 
tery of  the  Chesapeake  was  then  dissolved  by  the  General  Assem- 
bly. In  183.5,  the  Synod  of  Delaware  was  dissolved;  thus  showing 
the  power  of  the  General  Assembly  to  dissolve  presbyteries  and 
synods,  and  establishing  it  beyond  doubt.  The  presbyteries  that 
remained  in  connexion  with  the  General  Assembly,  were  thus 
affected  by  the  dissolution  of  other  presbyteries,  and  the  General 
Assembly  by  dissolving  some  of  the  presbyteries,  and  attaching 
their  constituent  churches  to  other  presbyteries,  might  change  the 


431 

representation  at  any  time.  I  do  not  mean  to  say  that  they  could 
do  this  contrary  to  the  established  laws  of  the  Presbyterian  Church ; 
but  I  mean  to  say,  that  in  accordance  with  those  established  rules, 
they  could  and  did,  in  1834,  and  at  other  times,  dissolve  presby- 
teries and  synods,  and  attach  their  fragmentary  portions  to  others. 
And  if  the  General  Assembly  possessed  this  power  in  1834,  it  cer- 
tainly did  in  1837. 

But  the  proceedings  of  the  General  Assembly  of  1837,  surround- 
ed as  that  body  was  by  peculiar  circumstances,  may  be  referred  to 
in  another  ])oint  of  view.  That  they  had  a  right  to  pursue  the 
course  which  they  did,  is  proven  by  reference  to  the  proceedings 
in  the  case  of  the  Third  Presbytery  of  Philadelpiiia.  To  this  I 
WQuld  call  your  particular  attention,  and  you  will  be  good  enough 
to  recollect,  that  not  a  word  was  said  in  Ranstead  court,  in  1838, 
of  these  being  acts  of  usurpation;  an  evidence  that  they  were  not 
viewed  as  such.  Instead  of  that,  they  confined  their  complaints  to 
the  proceedings  in  the  case  of  the  four  synods,  and  undertook  to 
consider  the  act  declaring  them  to  be  dissolved,  as  null  and  void. 
They  did  not  consider  a  similar  act,  relating  to  the  Third  Presby- 
tery of  Philadelphia,  null  and  void.  And  they  did  not,  even  in  1837, 
pretend  that  the  General  Assembly  had  not  power  to  dissolve  that 
presbytery,  but  their  only  question  was  as  to  timely  notice  having 
been  given,  which,  I  have  already  shown  you,  could  not  avail  them 
in  the  least  in  this  Court,  as  the  fact  of  their  jurisdiction  shields 
their  acts  from  investigation.  That  the  General  Assembly  was 
transcending  its  power,  was  not  suggested,  in  1837.  It  was  not, 
then,  even  supposed  by  any,  not  even  by  these  New  School  gentle- 
men themselves.  In  1838,  when  these  gentlemen  rose  in  their 
places,  and  denounced  the  proceedings  of  the  General  Assembly 
of  1837,  they  said  nothing  about  the  dissolution  of  the  Third  Pres- 
bytery of  Philadelphia.  They  were  silent  as  to  the  question  of 
power  in  1837,  as  appears  by  the  Protest  of  the  minority,  a  New 
School  paper,  which  was  presented  to  the  General  Assembly  of 
that  year,  and  which  abounded  with  protestations  against  the  dis- 
solution of  that  presbytery,  but  altogether  irrelevant  to  the  question 
of  power.    That  protest  is  recorded  in  the  minutes  of  1837,  p.  487. 

By  the  minutes  of  the  Assembly,  you  may  perceive  that  the  his- 
tory of  the  Third  Presbytery  of  Philadelphia,  is  a  history  of  its 
dissolution  and  resuscitation,  and  from  the  beginning  to  the  end  of 
the  controversy  in  relation  to  that  presbytery,  the  unlimited  power 
of  the  General  Assembly  was  admitted  and  claimed  by  the  mem- 
bers of  that  presbytery,  in  opposition  to  the  Synod  of  Philadelphia. 
They  did  not  once  raise  the  objection  that  the  power  of  the  General 
Assembly  was  limited.  The  objection  that  they  raised  was,  that 
those  proceedings  conflicted  with  the  sevenal  previous  decisions  of 
the  General  Assembly.  The  power  of  the  General  Assembly  over 
the  inferior  judicatories,  was  not  questioned  by  these  New  School 
men,  during  the  whole  course  of  the  proceedings  in  relation  to  the 
Third  Presbytery  of  Philadelphia ;  on  the  contrary,  it  was  acknow- 
ledged to  the  fullest  extent.  And  the  General  Assembly  dissolved 
the  Synod  of  the  Western  Reserve,  and  the  other  synods,  by  the 


432 

same  authority  thai  they  exercised  in  dissolving  the  Presbytery  of 
the  Chesapeake,  the  Synod  of  Delaware,  and  the  Third  Presbytery 
of  Philadelphia,  Yet,  there  was  no  usurped  authority  in  the  case 
of  those  bodies.  Why,  then,  should  there  be  in  the  cases  of  the 
lour  synods'?  Add  to  this  Dr.  Patton's  resolution,  strengthening  this 
position.  It  speaks  of  presbyteries  us  deprived  of  this  right  to  be 
represented  in  the  General  Assembly,  alludes  particularly  to  those  of 
the  tour  synods,  but  says  not  a  word  about  the  Third  Presbytery  ot 
Philadelphia,  in  the  case  of  that  presbytery,  the  General  Assem- 
bly overlooked  the  synod,  and  went  directly  to  the  presbytery. 
But  there  is  no  difference  in  principle.  The  exercise  of  power  was 
ti:e  same  as  in 'the  other  cases.  Dr.  Mason  also  confined  himself 
to  the  presbyteries  of  those  synods.  He  distinctly  mentioned  the 
presbyteries  when  he  made  his  motion.  Thus  we  have  an  acknow- 
ledgment on  the  part  of  Dr.  Mason,  that  the  act  dissolving  the 
synods,  extended  to  and  bound  the  presbyteries.  He  also  thereby 
admitted  the  propriety  of  the  proceeding  by  which  the  Third  Pres- 
bytery was  dissolved ;  else,  why  liad  not  Dr.  Mason,  when  he  rose, 
one  commission  from  the  Third  Presbytery  of  Philadelphia. 

It  is  perfectly  consistent  to  conclude,  that  there  was  the  same 
power  to  dissolve  the  four  synods,  that  there  was  to  dissolve  the 
Third  Presbytery  of  Philadelphia,  and  the  omission  of  Dr.  Mason 
to  present  the  commissions  from  that  presbytery,  is  therefore  the 
admission  of  ihe  power  and  right,  vested  in  the  General  Assembly, 
to  dissolve  those  synods.  It  is  a  plain  admission,  as  any  in  the 
world.  They  have  chosen  to  apply  to  themselves  a  law  which  is 
all-sufficient  for  our  purpose.  So  long  ago,  at  least,  as  1831  and 
1835,  we  find  the  cases  before  referred  to,  of  the  dissolution,  by 
the  General  Assembly,  of  synods  and  presbyteries.  I  refer  to  them 
again  to  satisfy  you  that  here  were  precedents,  which  are  the  true 
interpretation  of  law,  the  same  in  principle,  as  the  case  they  have 
raised.  They  acquiesced  in  these,  and  what  is  still  more  to  the 
point,  without  referring  to  those  proceedings  in  any  terms. 

I  return  now  to  the  consideration  of  the  Plan  of  Union,  to  show 
that  it  involved  neither  legislative  action  nor  any  thing  in  the  na- 
ture of  a  contract.  It  was  not  even  properly  called  a  "Plan  of 
Union."  It  is  a  mere  set  of  regulations,  adopted  by  the  General 
Assembly  and  the  General  Association  of  Connecticut;  and  I  ask, 
speaking  as  a  lawyer,  where  is  there  any  appearance  of  a  con- 
tract? What  IS  \he  consideration?  Where  are  the  parties  to  the 
contract?  Where  the  equality  of  the  parties?  If  there  is  a  contract 
to  prevent  the  Assembly  from  dissolving  these  synods,  produce  it, 
and  let  us  see  it!  They  produce  "the  Plan  of  Union  between  Pres- 
byterians and  Congregationa lists  in  the  New"  Settlements."  But 
that  is  not  a  contract.  The  General  Association  of  Connecticut 
has  nothing  to  do  with  it.  They  may  tell  you  that  it  was  some 
kind  of  agreement  or  plan  formed  between  A  and  B;  but,  I  ask, 
where  is  the  contract?  There  was  none,  because  there  is  no  con- 
sideration, and  no  penalty  for  a  violation  or  neglect  to  fulfil  the 
agreement,  in  any  sense  expressed,  from  beginning  to  end  ;  and  if 
it  were  in  the  form  of  a  contract,  it  would  be  void,  for  the  General 


433 

Assembly  of  course  has  no  power  to  make  such  a  contract.  I 
will  rend  for  the  enlightenment  of  your  minds  on  this  point,  from 
'•  The  Encyclopedia  of  Religious  Knowledge  ;"  a  work  written  by 
a  New  England  Congregationalist,  and  which  may  be  referred  to 
by  all  as  authority.  You  must  bear  in  mind  that  they  are  not 
Presbyterians  but  Congregationalists.  Presbyterianism  does  not 
extend  in  that  direction  beyond  the  Synod  of  Albanv.  In  the 
South,  the  Calvinists  are  generally  Presbyterians.  In  New  Enc^- 
land,  and  in  the  western  and  northern  sections  of  the  stale  of  New 
York,  and  in  the  northern  portion  of  Ohio,  known  by  the  name  of 
the  Western  Reserve,  they  are  generally  Congregationalists  ;  and, 
as  we  see  by  this  authority,  the  Congregational  Associations  are 
limited  as  to  their  powers;  as  are  also  another  class  of  ecclesiasti- 
cal bodies,  termed  Consociations.  These  Congregational  Assem- 
blies are  "  Associations  of  Ministers"  only,  having  no  power  of 
making  laws,  and  only  extending  a  mere  advisory  counsel  to  the 
Congregational  churches.  Those  churches  are  not  bound  by  any 
decision  of  either  the  Association  or  Consociation.  Here,  under 
tlie  title  "Connecticut,"  we  also  read,  that  "  in  1791,"  a  mistake  of 
ten  years,  "  a  plan  was  adopted  between  the  General  Assembly  of 
the  Presbyterian  Church,  and  the  General  Association  of  Connecti- 
cut, by  which  Presbyterians  and  Congregationalists,  in  the  New 
Settlements,  were  entirely  amalgamated ;"  and  further,  that  "four 
Hundred  of  these  Union  churches  have  been  planted  by  Congrega- 
tionalists of  Connecticut  alone." 

"Pierced  through  the  very  vitals,"  indeed  we  seem  to  be  by  this 
Plan  of  Union,  as  my  learned  friend  said  on  another  subject  in  ap- 
plication to  the  opposite  party.  Here  it  has  been  shown  by  this 
book,  that  those  Congregational  churches,  which  have  been  estab- 
lished under  their  construction  of  the  "  Plan  of  Union,"  have  now 
grown  up  io  four  hundred  in  number.  When  they  have  thus  be- 
come great,  and  even  the  majority  in  some  of  the  synods  and 
presbyteries,  even  greater  than  the  stock  into  which  they  were 
grafted,  are  we  to  be  told  that  "  the  Plan  of  Union"  in  the  New 
Settlements  must  be  continued  to  them,  and  that  we  have  no  power 
to  terminate  it?  On  the  one  side  it  may  be  urged,  that  it  is  produc- 
tive of  benefit  to  them,  but  on  the  other  side  may  we  not  urge  its 
injurious  effects  on  us?  Congregationalists  cannot,  with  propriety, 
be  represented  in  the  presbyteries;  for  if  they  can  do  this,  they 
may  shortly  abstract  the  whole  power  of  the  Presbyterian  Church, 
in  violation  of  the  charter  of  incorporation.  They  never  had 
power  to  enter  into  any  contract  at  all;  and  yet  they  claim  to  enter 
on  our  premises,  and  seize  our  property  by  virtue  of  what  they  had 
not  power  to  make :  as  though  it  were  for  that  very  purpose  of 
seizing  the  property  of  the  Presbyterian  Church  that  they  entered 
it.  I  am  showing,  that  the  "  PJan  of  Union,"  the  abrogation  of 
which  is  complained  of,  was  not  a  law  or  a  contract.  It  wants  the 
validity,  the  formality,  and  the  legality  of  a  contract.  Even  a  con- 
tract with  the  sexton  for  opening  the  church  (the  place  of  worship) 
in  the  morning  and  evening,  is  made  in  the  proper  form,  and  it 
would  be  singular  indeed  that  a  contract  for  opening  the  door  to 

37 


434 

the  communion  and  privilege  of  the  whole  Preshyterian  denomina- 
tion should  be  without  form.  It  is  a  safe  regulntion  which  requires 
all  contracts  to  be  made  in  proper  form,  and  they  can  have  no 
force  of  law  without.  I  hold  in  my  hand  what  they  will  not  be 
disposed  to  deny.     Again,  on  page  5  of  this  book — 

Mr.  Wood.  I  would  respectfully  suggest,  whether  this  is  con- 
sistent with  the  practice  of  this  Court.  If  the  opposite  counsel  is 
allowed  to  go  on  in  this  manner,  reading  and  comnienting  on  what 
is  not  in  evidence,  and  from  books  which  may  have  been  got  up,  as 
has  been  intimated,  for  the  express  purpose  of  prejudicing  this  case, 
I  have  something  to  say  in  relation  to  what  I  offered  in  evidence; 
and  to  which  they  objected.  Your  Honour  will  recollect,  that 
there  is  nothing  in  evidence  as  to  the  Third  Presbytery  of  Phila- 
delphia. 

Mr.  Ingersoll.  The  Third  Presbytery  of  Philadelphia  was  refer- 
red to  by  Mr.  Meredith. 

Mr.  Wood.  We  offered  the  minutes  of  those  very  proceedings 
in  relation  to  the  Third  Presbytery,  to  show  the  manner  in  which 
the  dissolution  of  that  presbytery  was  effected;  but  they  objected, 
and  the  testimony  was  ruled  out  l)y  the  (^ourt,  and  I  think  it  would 
be  exceedingly  unfair  to  permit  them  now  to  put  their  own  con- 
struction on  it;  unless  it  is  distinctly  understood  that  I  am  to  be 
allowed  the  same  liberty.  From  an  unwillingness  to  interrupt,  we 
have  sat  by  and  listened  to  a  mass  of  matter  entirely  irrelevant  to 
the  case,  and  extended  comments  on  statements  in  books  not  in  evi- 
dence, and  of  the  correctness  of  which  statements  there  is  not  a 
shadow  of  proof,  as  well  as  to  a  long  argument  on  the  case  of  the 
Third  Presbytery  of  Philadelphia. 

Judge  Rogers.  The  course  complained  of  is  irregular  and  im- 
proper, as  has  been  a  great  deal  of  what  has  been  introduced  into 
this  case;  but  when  the  opposite  counsel  was  sitting  by  and  did  not 
interfere,  it  was  a  matter  of  great  delicacy  in  a  case  of  this  peculiar 
character  for  the  Court  to  interpose.  Objection  being  now  made, 
the  counsel  must  return  to  the  consideration  of  what  is  in  evidence 
in  the  case. 

Mr.  Ingersoll.  Still  I  may  argue  that  the  case  of  the  Third  Pres- 
bytery of  Philadelphia  is  analogous  to  those  which  were  included 
in  the  motions  of  Drs.  Patton  and  Mason  in  the  General  Assembly 
of  18.38.     But  I  am  not  particular  about  it,  if  exception  be  taken. 

What  I  am  now  about  to  bring  to  your  notice,  the  acts  of  1837, 
I  suppose  will  not  be  excepted  to,  unless  because  it  is  so  long  since 
it  was  given  in  evidence  that  my  learned  friends  may  have  for- 
gotten it.  I  have  something  to  say  of  the  proceedings  of  the  Gene- 
ral Assembly  of  1837  different  from  the  mere  abstraction  which  I 
first  proposed.  I  allude  to  the  various  proceedings  in  relation  to 
the  four  synods.  The  dissolution  of  those  four  synods  was  effected 
by  a  decided  majority  of  the  members  of  the  General  Assembly  of 
1837.  The  first  of  those  excinding  resolutions,  as  they  have  been 
called,  was  the  act  of  the  Assembly  declaring  that  the  Synod  of  the 
Western  Reserve  no  longer  continues  to  be  a  part  of  the  Presby- 
terian Church.    By  a  subsequent  proceeding  of  a  similar  character 


435 

the  other  three  synods  were  declared  to  be  no  longer  a  part  of  the 
Presbyteriatj  ('hurch.  The  Western  Reserve  is  a  term  of  peculiar 
import,  and  may  need  some  explunalion.  The  nait)e  "Western 
Reserve,"  has  been  applied  to  a  large  tract  of  country  lying  on 
Lake  Erie  and  contprising  seven  cout)ties  in  the  norlli-eastern  part 
of  Ohio;  the  right  of  soil  in  which  tract  was  reserved  to  the  state 
of  Connecticut.  Thus  the  epithet,  New  Connecticut  or  the  Western 
Reserve,  came  to  be  applied  to  it  by  the  first  settlers,  who  were 
mostly  emigrants  from  Connecticut.  The  other  three  excinded 
synods  lie  in  the  western  part  of  the  state  of  New  York. 

Tl:e  Synod  of  the  Western  Reserve  was  erected  from  the  Synod 
of  Pittsburgh  in  1825,  as  the  Synod  of  Pittsburgh  was  erected  from 
the  Synod  of  Virginia  in  180.i.     But  I  desire  now  to  call  your  at- 
tention to  the  state  of  the  parties  existing  at  the  time  when  the  pro- 
position was  introduced  by  the  Old  School  party  into  the  General 
Assembly  of  1837.    The  New  School  party  then  agreed  with  the  Old 
School  men  that  a  division  of  the  church  was  necessary  to  further  the 
advancement  of  the  Redeemer's  kingdom.     But  the  proposition  was 
defeated  by  the  New  School  party.     Judge  Jessup,  who  afterwards 
proposed  a  citation  of  the  synods  which  were  complained  of,  the  very 
man  who  afterwards  proposed  this  measure,  together  with  his  friends 
of  the  New  School,  opposed  it  when  the  Old  School  party  introduced 
the  proposition  and  were  willing  to  agree  to  it.     So  inconsistent 
were  these  New  Schf)()l  men,  as  you  will  perceive  by  the  manner 
in  which  all  these  things  were  done.     The  several  measures  were 
delibeately  debated  and  considered,  and,  as,  when  in  legislative 
proceedings  those   who  are  fond  of  speaking  have  exhausted  the 
subject,  the  house  must  resort  to  something  to  put  an  end  to  what 
would  otherwise  be  interminable,  a  moiion  was  made  for  the  pre- 
vious qupstion,  which  put  an  end  to  the  debate  and  brought,   the 
house  immediately  to  action  on  the  proposition  before  it.     The  pro- 
ceedings in  relation  to  the  I'lan  of  Union  took  place  in  the  General 
Assembly  on  the  19th  and  '20th  of  May  1837.     These  proceedings 
have  been  submitted  to  you,  and  you  see  that  they  were  perfectly 
refjular.     Now,  if  I  have  not  shown  you  by  positive  testimony,  that 
the  reasons  alleged  for  the  abroj^ation  of  this  plan  are  true,  1  have 
them  here  in  the  resolution  itself.     The  authority  of  that  Assembly 
of  1837  is  ample  testimony  to  the  truth  of  those  reasons,  unless  tliey 
are  disproved.     The   biu'den,  therefore,  lies  on  them.     And  why 
have  they  not,  from  May  1837  to  this  day,  adduced  one  particle  of 
evidence  that  those  reasons  were  not  true,  that  the  disorders  did  not 
exist,  or  that  the  General  Association  of  Connecticut  had  authority 
to  make  contracts?     The  answer  is,  they  could  not  do  il.     Their 
objections  to  the  repeal  of  tlie  Plan  of  Union  were  inconsistent,  and 
shall  they  cause  all  the  funds  of  the  church  to  fall  into  their  hands 
merely  by  taking  advantage  of  their  unsuspecting  brethren?    The 
General  Association  of  ('onnecticut  had  no  power  to  enter  into  a 
contract  with  the  General   Assembly  of  the  I'resltyterian  ("hm'ch. 
They  had  no  power  to  regulate  the  churches  and  C(mgregations  in 
Connecticut.      Tl»e  extent   of  their   power  was  advisory  merely. 
And  if  they  had  entered  into  such  a  contract  with  the  General  As- 


436 

sembly  it  would  have  been  unconstitutional,  null  and  void.  The 
learned  counsel  (Mr.  Wood)  rose  in  the  midst  of  my  argument  on 
this  subject  and  objected  to  my  proceeding,  alleging  that  it  was  not 
in  evidence.  1  was  taken  by  surprise,  but  the  burthen  of  the  day  is 
on  them,  and  it  is  not  for  us  to  sustain  tiiem  if  they  are  determined 
to  destroy  themselves.  I  care  not  whether  it  comes  from  books  or 
not,  so  that  it  is  argument.  If  they  do  not  undertake  to  meet  it,  they 
admit  the  impossibility  of  meeting  it. 

The  Plan  of  Union  having  been  abrogated,  the  next  business  in 
the  series  of  these  transactions  taken  up  by  the  Assembly,  was  the 
subject  of  citation,  the  very  thing  which  was  not  carried  into  effect 
on  account  of  their  stubbornness.  You  may  ask,  why  was  it  pro- 
posed to  bring  up  those  presbyteries  by  citation?  Dr.  Elliott,  and 
others  of  his  friends,  were  on  the  side  of  citation  ;  and  Mr.  Cleave- 
land,  Dr.  Beman,  and  their  associates,  opposed  it  with  all  the  force 
of  a  powerful  minority  vote.  You  will  perceive  that  the  previous 
question,  here  or  elsewhere,  is  resorted  to,  to  put  an  end  to  inter- 
minable debate;  a  very  harmless  and  usual  course,  but  always  re- 
garded as  being  oppressive,  by  the  minority.  The  debate  had 
continued  until  a  late  hour  of  the  evening,  and  there  had  been 
ample  time  allowed.  Amongst  the  "yeas"  on  that  question,  we 
find  the  names  of  Alexander  Junkin,  Cornelius  C.  Cuyler,  and 
others;  and,  on  the  other  hand,  Mr.  Gilbert  and  others  of  the  New- 
School  party.  The  question  was  carried  by  a  small  majority,  in- 
dicating, perhaps  it  might  be  supposed,  that  the  majority  were  soon 
to  become  the  minority;  and  the  minority  entered  their  protests 
against  what  they  now  claim  to  be  i/ie  only  right  way,  the  very 
thing  which  ought  to  have  been  done  instead  of  excision.  But 
when  it  was  found  that  the  New  School  opposed  the  proposition 
for  regular  proceedings,  what  was  the  only  alternative?  It  is  found 
in  the  proposition  of  Mr.  Breckinridge,  of  which  notice  was  im- 
mediately given,  and  which  was  formally  introduced  the  next 
morning,  and  a  committee  appointed  to  effect  an  amicable  division. 
Mr.  Preston  reminds  us,  that  at  a  certain  stage  there  was  no  dif- 
ference between  them  on  the  propriety  of  this  measure.  Yes ! 
Those  scenes  of  scandal  should  have  been  avoided,  and  might  have 
been  avoided.  The  parties  would  have  been  happy,  if  they  had 
agreed  to  a  proposition  for  a  division.  After  that,  all  things  with 
regard  to  the  property  could  have  been  arranged.  Not  as  Solomon 
proposed,  to  divide  the  living  child.  The  Old  School  party  were 
willing  to  divide  the  property  with  them,  but  they  would  not  divide 
their  allegiance  to  the  Presbyterian  Church,  and  the  division  did 
not  take  place,  because  they  determined  to  remain  the  Presbyterian 
Church.  The  New  School  being  willing  before,  now  refused,  unless 
u-e  would  divide  our  allegiance  to  the  Presbyterian  Church.  That 
you  may  the  better  judge  of  this  matter,  the  fact  should  be  stated 
that  they  acknowledged  that  a  division  of  the  Church  had  become 
necessary.  The  Theological  Seminary  and  funds  at  Princeton, 
they  acknowledged  belonged  to  the  Old  School  party,  and  they  dis- 
puted about  nothing,  nothing  but  a  name.     It  was  a  measure  in 


437 

which  they  were  all  agreed,  that  division  was  necessary,  that  it 
must  take  place. 

What  divided  thenn  was,  that  the  Old  School  insisted  that  they 
would  all  iidhere  to  Presl)yleiianisni,  ih;itlliey  would  "remain"  the 
General  Asserrihly;  while  ilie  JNcvv  School  contended,  that  the 
funds  should  be  "  transferred^'  to  the  Old  School  as  a  body  to  be 
constituted,  as  well  as  lhem^elves.  They  insisted  on  remaining  a 
part  of  the  Presbyterian  ('hurch,  and  unless  the  Old  School  party 
could  thus  compromise  their  princi[)les  they  would  not  agree.  The 
Old  School  party  could  not  be  brought  to  think  with  the  puet, 

"  For  modes  of  faitli  let  graceless  zealots  fight, 
His  cant  be  wrong-  whose  lite  is  in  the  right," 

But  they  rather  chose  to  contend  earnestly  for  the  faith,  which  they 
believe  was  once  delivered  to  the  saints.  The  maxiin  of  the  poet 
was  wrong;  radically  wrong.  So  Presbyterians  believe,  and  of 
course  a  compromise  could  not  be  effected  on  that  ground.  That 
this  maxim  was  wrong,  we  think  will  sliortly  be  manifested  in  the 
life  and  conduct  of  him  who  adopts  it 

Where  Mr.  Meredith  got  his  supposition  that  we  refused  to  agree 
to  an  amicable  compromise,  I  know  not.  It  is  they  insisted  on 
having  one-half  the  living  child,  thouo-h  at  the  expense  of  depriving 
it  of  life.  We  insist  on  beinir  the  Presbyterian  (Jhurch.  We  sav, 
take  the  property  if  you  will,  only  leave  us  the  church  and  the 
principles,  which  we  revere.  Only  leave  us  the  succession  to  the 
Presbyterian  Church,  the  church  of  our  fathers,  and  we  are  satis- 
fied. That  is  the  point,  which,  in  our  estimation,  is  worth  more 
than  all  the  money  in  the  world.  On  this  question  of  faiih,  they  se- 
parated and  disiigreed.  The  one  party  wished  to  remain  as  it  was. 
The  other  would  not  give  up  to  it.  Both  agreed  as  to  what  men  of 
the  world  would  say  was  all  that  whs  worth  contending  about,  and 
they  differ  as  to  the  succession.  What  did  the  New  School  care 
for  the  seminary  at  Princeton?  What  for  the  boards  of  missions, 
and  of  education?  Nothinfr!  No,  nothing  but  the  name;  and  that 
they  speak  of  as  "immaterial,"  a  mere  "trifling"  consideration. 
The  separation  of  the  committee  resulted  from  the  fact  that  the 
Old  School  adhered  to  Presbyterianism  in  doctrine  and  practice, 
and  the  New  School  did  not.  In  regard  to  the  necessity  of  divi- 
sion, proposition  No.  1,  of  the  mnjority,  is  very  strong,  but  not  so 
strong  as  No.  1  of  the  minority,  on  the  same  subject.  They  add, 
that  the  measure  is  necessary  "  to  advance  the  glory  of  the  Re- 
deemer's kingdom."  The  proposition  was  made,  which  was  fair 
and  reasonable,  and  they  objected  to  it,  notwithstanding  it  had 
been  unanimously  agreed  that  a  division  of  the  church  was  neces- 
sary and  proper.  The  minority  refused  to  agree  to  any  proposi- 
tion that  would  acknowledge  us  the  majority,  as  the  successors  of 
the  fathers  in  the  Presbyterian  Church. 

There  is  a  seeming  inconsistency  between  the  final  report  of  the 
minority,  and  their  subordinate  report,  called  No.  1.  This  says, 
that  long  experience  had  proved  that  the  body  was  too  large,  and 

37* 


438 

that  they  believed  that  the  glory  of  the  Redeemer's  kingdom  would 
be  advanced  by  a  separation.     They  did  not  doubt  it:  and  yet  in 
their   final   report   to   the   Assembly,  they   say  that   they  had   not 
deemed  a  division   necessary,  but  had  been  induced  to  yield  that 
point,  because  the  other  party  were  so  strenuous  for  it.     And,  hav- 
ing thus  yielded,  the  only  point  of  dilference  between  them  and  the 
other  portion  of  the  committee,  they  say,  was  "v^'hether  the  preli- 
minary arrangements  should  be  sent  down  to  the  presbyteries,  or 
ad(»pted  now."     But  mark  the  points  in  which  they  actually  differ 
from   the   majority.     'I'hey  appear  to  ditier  only  as  to  the  shape 
which  the  agreement  should  assume.     They  propose  a  sli<;bt  differ- 
ence in  the  phraseology,  they  do  not  say  in  the  substance;  and  yet 
that  slight  difference  was  so  very  material,  thnt  they  have  contend- 
ed for  it  to  the  last.    Can  you  reconcile  it  ?    They  have  now  turned 
over  a  strange  page,  and  deprecated  a  separation.     They  are  the 
most  accommodating  gentlemen  in  the  world  !    There  is  an  obvious 
and  marked  difference  between  what  they  proposed  then,  and  what 
thev  claim  now.     I  do  not  wish  to  be  understood  as  casting  re- 
proach on  these  gentlemen;  far  from  it.     But  they  now  wish  to 
make  it  appear  that  they  were  willing  to  remain,  unwilling  to  di- 
vide the  church,  and  that,  as  reluctant  as  they  were,  we  were  de- 
termined to  cut  the  church  asunder.     The  only  material  part  of  the 
discrepancy  between  the  two  proposals,  was  that  the  Old  School 
party  wished  to  adopt  the  preliminaries  immediately,  and  the  New 
School  party,  with  a  very  little  delay;  and  that  the  Old  School 
party  were  determined  to  retain  the  name  and  character  of  the 
Presbyterian  Church,  whilst   the  New  School  party  were  deter- 
mined'that  they  should  not.     The  Old  School  adhered,  with  perti- 
nacity, to  the  succession  of  St.  Peter.     The  New  School  consider 
this  a   trifling   circumstance.     To  this   the  Old  School   reply,  by 
simply  referrmg  to  the  preceding  papers,  as  containing  their  final 
answer.     No.  4,  of  the  minority,  then  proposes  to  unite  in  a  report, 
that  the  two  parts  of  the  committee  are  agreed  on   the  general 
principle  on  which  a  division  should  be  effected,  and  request  the 
Assembly  to  decide  whether  it  should  be  consummated  now,  or  re- 
ferred to*  the  presbyteries.     To  this,  the  committee  of  the  majority 
reply,  that  they  consider  it  a  waiver  of  the  whole  subject.     They 
had  no  objection  to  take  a  new  name  themselves,  and  they  strenu- 
ously insisted  that  the  Old  School  party  should  take  a  new  name 
also.     Now.  in  regard  to  the  proposition  which  Mr.  Meredith  so 
much  ridicules,  what  is  the  difference  between  the  proposition  of 
the  two  parties'?     They  were  willing  that  the  Old  School  party 
should  have  the  Princeton  Theological  Seminary,  and  the  funds. 
The  Old  School  party  proposed  that  they  should  remain  with  the 
body  retainin?  the  name  of  the  General  Assembly  of  the  Presby- 
terian Church  in  the  United  States  of  America.     The  slight  altera- 
tion proposed  in  the  phraseology,  by  the  New  School  party,  was, 
that  they  should  be  transferred  to  the  body  to  be  called  by  that 
name.     They  were  willing  that  the  Old  School  party  should  hold 
the  Princeton  seminary  and  the  funds,  to  the  end  of  time,  if  we 
would  compromise  our  principles.     Of  the  propositions,  No.  5,  of 


4vi9 

the  majority,  closes  the  correspondence,  as  it  was  evidently  useless 
to  continue  it  any  longer,  since,  if  a  definite  conclusion  had  been 
come  to  by  the  General  Assembly,  neither  parly  would  have  con- 
sidered themselves  bound  by  it;  but  each  would  pursue  its  own 
course.  Thus,  though  in  appenr.ince  the  difference  in  the  phraseo- 
logy is  but  little,  yet  they  differed  essentially  us  to  the  modus  ope- 
randi of  the  plan  of  separation  proposed. 

This  negotiation  having  thus  proved  abortive,  by  the  stubbor- 
ness  of  the  New  School  party,  and  their  refusal  to  accede  to  the 
liberal  and  generous  proposition  of  the  Old  School,  the  latter  were 
forced  to  adopt  some  other  measure;  and,  the  plan  for  citation  ap- 
pearing inefiectual,  even  if  it  iiad  not  been  virtually  suspended  bv 
the  large  minority  against  it,  a  resolution  was  immediately  intro- 
duced, and  received  the  sanction  of  the  majority,  declaring  that  the 
Synod  of  the  Western  Reserve  was  no  longer  a  part  of  the  Presby- 
terian Church  in  the  United  States  of  America.  It  was  well  ob- 
served, that  as  we  had  tried  every  other  remedy,  and  the  New 
School  would  not  take  it,  we  must  therefore  resort  to  severe  mea- 
sures. The  abrogation  of  the  Plan  of  Union  was  deemed  essential 
to  the  prosperity  of  the  church,  and  the  Synod  of  the  Western  Re- 
serve, which  came  in  under  that  Plan  of  Union,  was  dissolved,  as 
a  necessary  consequence  of  the  abrogation  of  the  plan  itself.  But 
the  resolution  was  followed  by  protest  upon  protest. 

Now,  is  the  authority  of  the  General  Assembly  declarative? 
Here  is  their  declaration.  Is  it  controlling  over  synods?  They 
have  here  legitimately  exercised  it.  A  resolution  of  a  similar  cha- 
racter, respecting  the  synods  of  Western  New  York,  but  more  at 
large,  with  a  modification  extending  to  the  Western  Reserve,  was 
subsequently  introduced  by  Mr.  Breckinridge,  and,  after  various 
obstacles  from  the  New  Soho(jl  party,  was  carried.  This  was  the 
first  measure  which  prevailed  by  a  large  majority,  130  to  80.  I 
now  wish  you  to  give  your  attention,  for  a  single  moment,  to  the 
resolution  ottered  by  Judge  Jessup,  which  was  introduced  by  the 
minority,  when  the  proposition  of  Mr.  Breckinridge  had  nearly 
reached  its  final  result.  The  majority,  composed  of  the  Old  School 
party,  desired  the  separation  on  amicable  terms.  The  minority 
would  not  accede.  They  were  driven  from  every  measure  whicli 
they  desired  to  pursue  for  the  preservation  of  harmony  and  peace. 
The  New  School  party  raised  objections  to  every  proposition  ihat 
could  be  devised,  and  now,  on  the  eve  of  the  passage  of  these  reso- 
lutions, Mr.  Jessup  proposes  to  substitute  a  resolution  to  cite  these 
synods  to  the  bar  of  the  next  Assembly.  They  refused  our  propo- 
si-ion,  though  it  was  the  same  in  substance,  though  that  extended 
10  all  inferior  judicatories,  wherever  situated,  and  this  included  only 
the  three  synods;  because  they  were  the  very  ones  of  which  com- 
plaint had  been  made.  But  the  previous  question  cut  ofl'  all  the 
proposed  amendments,  and  brought  the  original  proposition  directly^ 
before  the  house,  and  so  Mr.  Jessup's  substitute  was  lost. 

I  will  here  read  these  excinding  resolutions,  as  they  are  termed, 
which  were  then  adopted.  [See  previous  pages  56  and  57,  resolu- 
tions numbered  1,  2,  3,  4.] 


440 

Now,  gentlemen,  you  would  think  that  there  was  extreme  chur- 
lishness on  the  part  of  those  who  would  not  thus  come  in  and 
participate  with  the  Presbyterian  Church  in  the  trnnsaction  of  its 
business.     They  refused   to  be  put  in   order,  and   in  consequence 
thereof  were  put  our,  and  then  they  refused  to  be  put  back  ag:iin. 
Those  who  were  so  wilhng  to  brenk  off,  when  the  division  was  un- 
der consideration,  will  not  consent  to  break  up  those  synods  as  now 
constituted.     They  will  not  obey  the  mandate  of  the  General  As- 
sembly;  but  they  were  before  determined  to  contend  about  a  name 
merely.     They  are  now  deternuned   to  contend  about  something 
else.     And  so  this  compound  or  New  School  party  are  outrageous 
in  their  denunciations  of  ttie  General  Assembly,  for  having  cut  off 
the  four  synods,  dissolved  then   in  consetjuence  of  the  abrogation 
of  the  "Plan  of  Union."  They  were  not  cut  off,  were  not  dissolved, 
nor  excluded.     No,  nothing!  only  they  were  \u\(\  to  come  in  as 
Presbyterians.     Where  is  the  hardness  of  this  transaction  dissolv- 
ing the  synods,  if  it  is  dissolving  them?  but  it  is  not;  it  is  only 
disowning  the  Congregalionalists  in  those  synods.     Every  Presby- 
terian mny  come  in  under  the  very  provisions  of  these  resolutions. 
Every  church   and   every   presbytery  belonging   to   those  synods 
could  have  enjoyed  the  whole  of  their  rights  and  privileges  to  the 
full  extent,  by  complying  with  a  simple  and  reasonable  requisition. 
The  Presbyterian  churches  within  those  bounds,  were  not  affected 
by  the  resolutions.    It  is  therefore  manifest,  that  they  nre  not  of  the 
Presbyterian  Church  at  all,  or  they  would  have  willingly  complied 
with   Presbyterian   order.     Many   of  them   were  Congregational 
churches,  which   were   presided   over   by  Presbyterian   ministers, 
and  these  Congregational  churches  could  not  be  represented  in  the 
General  Asseml)ly,  either  directly  or  indirectly,  af"ter  the  abroga- 
tion of  the  "Plan  of  Union,"  if  even   tliey  had  the  shadow  of  a 
claim  under  that  "  l*lan."    When  there  is  only  one  of  the  twevtyfour 
minister.*  l)elonging  to  one  presbytery  who  is  a  pastor  of  a  Pres- 
byterian church,  it  is  an  evidence  that  Congregationalism  has  taken 
deep  root.     The  injury,  the   injustice,  was  manifest,  and  from  it 
they  could  not  escape  in  any  other  way  than  by  adopting  just  such 
a  resolution  as  they  did.     You  may  call  those  resolutions  by  what 
name  you  please;  but  disownment  it  is  not,  unless  you  say  that  we 
disowned  them  precisely  as  we  did  the  Synods  of  the  Chesapeake 
and  Delaware.   The  General  Assembly  disowned  nothing  but  what 
■was  not  Presbyteri.in.     They  only  dissolved  those  four  synods,  be- 
cause their  constituent   parts  were  Congregationalists,   who  had 
come  amongst  the  Presbyterians,  where  they  had  no  right  to  come. 
Such  as  were  really  Presbyterians,  were  not  affected  by  it,  as  the 
door  was  never  closed  against  them.     The  resolution  merely  at- 
tached  them  to  some    presbytery,  which  was  regularly  formed. 
But,  said  they,  "that  is  not  the  thing  we  wish.  The  name  is  exactly 
the  thing.     Give  up  your   name,  and  we  are  satisfied."     It  was 
more  than  churlish  in  these  men.     It  is  the  indulgence  of  churlish- 
ness which  works  infinite  mischief.     But  why,  they  ask,  was  not 
the  Synod  of  Albany  dissolved  or  excluded,  when  one  of  the  pres- 
byleries  belonging  to  it,  was  as  deeply  imbued  with  the  heresy 


441 

of  Congregationalism  as  some  of  the  presbyteries  belonging  to  the 
four  excinded  synods.  I  answer  :  because  it  was  not  then  deemed 
necessary,  as  the  Synod  of  Albany  had  a  number  of  Presbyterian 
presbyteries  belonging  to  it,  and  it  might  be  presumed  that  there 
was  yet  sufficient  strength  in  that  synod  to  remedy  the  evil  com- 
plained of.  The  General  Assembly  certainly  had  the  power  to 
dissolve  the  Synod  of  Albany,  the  Presbytery  of  Montrose,  or  any 
other  synod  or  presbytery,  or  to  change  their  boundaries,  as  they 
are  all  bounded  by  geographical  lines,  and  generally  formed  of 
churches  which  are  contiguous.  They  are  not  always  bounded  by 
the  geographical  lines  of  the  states.  For  instance,  the  Presbytery 
of  Montrose,  in  Susquehanna  county,  Pennsylvania,  belongs  to  the 
Synod  of  New  Jersey.  Whether  any  part  of  that  synod  is  in  the 
state  of  New  York,  I  do  not  know.  But  I  need  not  take  up  much 
of  your  lime  in  the  examination  of  this  part  of  the  subject,  as  there 
was  not  a  man,  or  church,  or  presbytery,  which  was  truly  Presby- 
terian in  doctrine  and  order,  interfered  with  by  the  resolutions 
which  have  been  so  liberally  anathematised.  If  any  were  inter- 
fered with,  they  were  Congregationalists,  and  not  Presbyterians. 
They  were  Congregationalists,  and  would  not  submit  to  the  decrees 
of  the  Presbyterian  General  Assembly.  That  is  what  produced 
the  wrong  results.  That  is  the  meaning  of  their  protests,  and 
nothing  else;  and  such  it  must  appear  in  a  court  of  justice. 

On  the  great  question  of  priority,  or  power,  there  is  no  difficulty 
where  parties  are  disposed  to  do  right.  The  congregations  are 
parts  of  the  synods,  and  as  such  fell  with  them.  I  find  in  the 
minutes  of  the  Assembly  for  1837,  that  the  important  reasons  for 
the  protest  presented  to  the  General  Assembly  against  the  resolu- 
tion relative  to  the  Synod  of  the  Western  Reserve,  were  the  modus 
operandi.  Information  was  drawn  out  from  the  members,  cate- 
chetically,  &c.  Perhaps  we  shall  understand  this  by  and  by.  At 
present,  I  only  observe  that  the  three  cardinal  measures  of  the  Old 
School  party  were  the  abrogation  of  the  "Plan  of  Union,"  the  reso- 
lution declaring  the  Synod  of  the  Western  Reserve  no  longer  a  part 
of  the  Presbyterian  Church,  and  a  similar  resolution  relative  to  the 
Synods  of  Utica,  Geneva,  and  Genessee.  Now,  if  they  did  not  wish  to 
drive  us  to  these  measures,  why  did  they  oppose  an  amicable  sepa- 
ration? Why  did  they  not  bring  themselves  to  agree  to  the  mea- 
sure, when  it  was  proposed  by  the  majority?  They,  the  minority, 
would  not;  and  we  found  that  it  was  useless  to  pursue  the  subject 
further.  Can  a  Christian  assembly  meet  together  in  harmony, 
where  there  are  two  parties,  and  they  are  each  determined  to  bear 
rule  over  the  whole  church  ?  Can  they  not  act  more  advantageously 
apart?  Let  me  illustrate  this. 

The  colonizationists  and  abolitionists  both  have  the  same  object 
in  view,  the  amelioration  of  the  condition  of  the  negro  race,  and 
the  ultimate  emancipation  of  every  slave:  and  yet  they  cannot 
agree  with  each  other,  because  they  differ  as  to  the  means  to  effect 
the  objects  they  both  have  sincerely  at  heart.  Both  these  societies 
are  labouring  assiduously,  and  at  great  expense,  to  promote  the  ex- 
tinction of  what  they  both  consider  the  greatest  curse  which  has 


442 

ever  fallen  on  any  part  of  our  beloved  country.  Yet,  as  they  dif- 
fer widely  as  to  the  nnenns  to  be  employed  to  effect  that  momentous 
object,  they  are  the  very  antipodes  of  each  other  in  their  action. 
Thus,  whenever  the  colonizationists  and  abolitionists  come  in  con- 
tact, there  is  any  thing  but  harmony  and  peace.  Each  contends  earn- 
estly in  support  of  his  favourite  plan,  and  assails  the  other  with 
language  more  violent  and  abusive  than  they  apply  to  their  common 
opponents.  And  these  two  parties  can  no  more  come  together  in  har- 
mony and  peace  in  the  Presbyterian  Church,  than  colonizationists 
and  abolitionists  in  one  society.  The  self-will  of  the  leaders  of  the  two 
parties,  or  an  actual  difference  in  opinion,  will  for  ever  keep  them 
apart.  They  cannot  harmonise  together,  and  it  would  be  cruelty 
to  force  them  into  contact  with  each  other.  It  is  enough  to  estab- 
lish this,  which  is  shown  on  these  very  minutes.  There  are  "  im- 
portant differences  in  doctrine."  The  New  School  party  differs 
from  us  on  points  of  theology.  They  will  not  give  up  the  name  of 
Presbyterians.  Not  they  :  and  yet  they  acknowledge  that  there  is 
a  difference  between  them  and  the  Old  School  party  on  points  of 
theology.  I  must  confess  that  I  do  not  understand  them,  and  will 
not  attempt  an  investigation  of  them.  They  now  say,  that  those 
points  of  diff^erence  in  theology  are  not  essential.  The  Old  School 
men  say  that  they  are.  No  matter  which  is  right,  they  cant  agree 
together,  and  they  must  part.  Every  church  in  its  turn  has  been 
subject  to  such  intestine  convulsions,  and  could  not  be  tempered 
down  to  an  agreement  between  the  parties.  Agreement  has  gene- 
rally been  found  to  be  impossible  where  theological  disputes  have 
arisen.  Amongst  the  early  reformers,  Luther  and  Calvin  never 
could  agree  in  any  thing  except  a  zealous  opposition  to  the  Church 
of  Rome.  Such  has  been  the  case,  and  probably  will  be,  until  the 
promised  millennium,  when  Christ  shnll  reign  in  the  brightness  of 
his  glory  for  a  thousand  years.  The  Old  School  party  believe  that 
they  are  on  the  right  ground,  and  that  the  others  have  gone  off"  and 
left  them.  They  had  better  keep  apart.  There  is  between  them, 
a  wide  and  irreconcilable  difference  in  doctrinal  principles. 

There  is  also  another  difference;  namely,  in  the  Form  of  Govern- 
ment of  these  churches.  I  would  not  say  with  my  colleague,  who 
opened  our  case,  that  the  Presbyterian  government  is  an  aristocra- 
cy. I  would  raiher  call  it  a  representative  democracy,  while  the 
Congregational  government  is  vested  in  each  congregation  as  an 
independent  church,  and  is  a  pure  democracy.  Now,  how  can 
these  two,  so  different  in  principle  and  practice,  be  united  without 
strife  and  confusion?  They  are  now  disintegrated,  and  peace  and 
harmony  loay  be  restored  if  they  are  not  again  connected.  Sixty 
thousand  Congregationalists  cannot  come  into  the  Presbyterian 
Church  without  endangering  the  stability  of  the  church  itself.  They 
cannot  come  in  without  invading  the  sanctuary,  as  the  devils  in 
pandemonium  waged  war  against  heaven  itself.  But  as  the  de- 
mons there  suffered  a  defeat  and  an  overthrow,  so  here  it  might 
be  expected  to  be  tfie  case.  But,  with  this  difference  in  feelings, 
what  would  be  the  strife  between  these  two  parties  if  they  should 
come  together  again?     What  would  the  New  School  parly  do  in 


443 

the  church  which  they  have  resisted,  and  are  now  resisting  by  an 
appeal  to  the  arm  of  Hesh?  Can  the  fleshly  arm  of  the  civil  power 
cliMnge  them  into  true  Presbyterians?  As  well  might  we  expect 
the  Ethiopian  to  change  the  colour  of  his  skin  or  the  leopard  his 
spots.  It  is  not  by  appeals  to  law,  that  they  can  prove  their  desire 
for  the  restoration  of  peace  and  harmony.  The  manner  in  which 
these  suits  have  been  commenced,  must  be  considered.  The  first 
step  towards  appealing  to  the  law  was  taken  on  the  7th  day  of 
June,  1837.  See  also  their  notice  served  on  the  trustees.  Yes,  be- 
fore that  Assembly  was  dissolved,  their  language,  in  etiect,  was, 
"  we  are  going  out  from  you  ;  we  are  not  satisfied  with  the  jurisdic- 
tion of  the  spiritual  court;"  and  these  measures  were  introductory  to 
a  series  of  judicial  process,  which  I  would  immediately  present  to 
you,  but  pause  for  the  sake  of  doing  away  an  impression,  if  it  has 
been  made  on  your  minds,  (and  it  has  been  industriously  endeavour- 
ed,) that  these  proceedings  were  mere  amicable  suits.  There  is  no 
such  thing.  And  I  here  proclaim  that  the  Old  School  have  had  no 
part  in  bringing  these  suits,  but  have  deprecated  them  in  every 
ibrm.  They  have  brought  suits  against  us  in  divers  ways,  and 
with  great  industry;  and  however  we  may  be  willing  to  abide  the 
issue  of  them,  it  would  be  unjust  to  our  party  to  suppose  that  we 
desire  litigation.  The  Old  School  party  have  come  here,  because 
thev  have  brou";ht  us  here.  We  had  nothing  at  all  to  do  with  it. 
This  should  be  borne  in  mind,  that  the  ]\ew  School  party  have 
forced  us  into  this  court,  as  they  had  before  forced  us  to  record  the 
unhappy  differences  in  the  church.  It  may,  however,  be  permitted 
for  a  trial  of  their  faith,  as  the  faith  of  the  disciples  of  our  Lord  was 
severely  tried  by  adversities  which  came  upon  them.  There  is 
nothing  in  the  principles  of  the  Old  School  which  can  be  consider- 
ed as  the  elements  of  law  suits.  But  let  parties  like  these  consider 
what  must  be  the  consequence  of  each  one  endeavouring  to  bring 
as  many  law  suits  as  possible  for  the  annoyance  of  the  other  party. 
Where  would  it  end?  There  is  something  odious  to  us  in  the  con- 
templation of  these  suits.  They  have  brought  suit  upon  suit,  as 
though  they  intended  to  place  a  great  gulf  of  unfathomable  depth 
between  us  and  them.  Judge  Brown  has  brought  no  less  than  five 
suits.  (I  intend  to  tell  the  truth.)  Not  one  suit  merely,  but  when 
dissected,  it  amounts  to  no  less  than  five.  He  puts  himself  in  the 
fiont  of  the  battle.  Thus  Judge  Brown,  Mr.  Squier,  and  Mr.  Hay 
have  commenced  no  less  than  fifteen  suits  against  different  mem- 
bers of  the  Old  School  party.  The  trial  of  one  of  these  suits  would 
answer,  if  they  only  wished  to  obtain  the  decision  of  a  mere  ab- 
stract question,  of  a  matter  of  law  and  fact.  But  this  principal  suit 
is  worse  than  all  the  rest,  and  the  worst  that  could  possibly  be 
adopted,  and  that  is  to  be  decided  by  yourselves,  gentlemen.  You 
are  to  decide  whether  this  outrageous  blow,  aimed  at  the  head  of 
the  venerable  father  of  the  Presbyterian  Church,  (Dr.  A.  Green,) 
shall  be  successful.  Like  political  demagogues,  claiming  seats  in 
the  national  or  state  councils  without  the  shadow  of  right,  and 
merely  by  a  quibble  of  law ;  so  in  the  church,  persons  may  claim 
to  have  been  elected  trustees  without  even  the  shadow  of  right  in 


444 

justice  and  equity;  and  all  for  the  purpose  of  casting  reproach  on 
the  Presbyterian  Church.  But  you  will  rebuke  them.  There  n^iay 
be  Christians  in  name  and  in  principle  on  the  other  side,  but  they 
are  not  Presbyterians.  They  have  adopted  force,  and  my  friends 
on  the  other  side  never  would  have  brought  forward  the  grave 
charges  they  have  done,  without  consultation  with  their  clients. 
These  New  School  men  have  shown  a  disposition  to  produce  all 
these  evils.  In  their  consultation  they  said  that  they  had  now  pass- 
ed the  Rubicon,  as  Csesar  said  when  he  passed  the  little  stream 
v^hich  flows  through  the  environs  of  Rome,  and  by  which  I  suppose 
they  meant  that  they  crossed  the  boundary  and  got  out  of  the  Pres- 
iiyterian  Church.  They  have  passed  it,  and  they  know  it.  Recon- 
ciliation between  these  two  parties  is  impossible.  Their  separation 
is  for  ages.  Their  enmity  is  as  lasting  as  their  lives.  The  end 
thereof  neither  they  nor  their  children  shall  see.  In  all  respects  the 
controversy  has  been  bitter;  and  they  have  used  towards  each 
ether  hard  words,  the  very  warmest  epithets  that  could  be  adopted. 
Wounds  deep  and  grievous  have  been  the  consequence;  which  ages 
cannot  heal.  This  has  been  done  against  the  wish,  and  contrary 
to  the  best  advice  of  a  large  majority  of  Presbyterians,  and  special- 
ly of  those  men  who  are  the  defendants  in  this  cause.  I  shall  not 
go  back  to  former  times  lest  I  shall  be  accused  of  injustice.  There 
was  and  is  a  majority  of  the  Old  School  party.  No  doubt  of  it. 
In  Pennsylvania  they  are  to  the  New  School  men  as  thirty-three  to 
three.  If  there  are  hundreds  in  favour  of  their  measures,  there  are 
thousands  opposed.  Where  they  have  thousands  the  Old  School 
party  have  tens  of  thousands.  Whilst  they  claim  sixty  thousand, 
we  have  hundreds  of  thousands  of  worshippers. 

Now  to  another  point.  It  is  a  fundamental  principle  of  Presby- 
terianism,  that  the  majority  must  govern.  So  it  is  distinctly  laid 
down  in  a  note  to  chapter  12  of  the  Form  of  Government.  The 
majority  were  desirous  to  effect  an  amicable  adjustment  of  all  their 
difficulties;  but  the  New  School  party  would  not  agree  to  the  pro- 
position. They  suflfered  a  mere  shadow  of  a  shadow  to  turn  the 
scale.  They  objected  to  what  could  not  have  produced  any  prac- 
tical results.  And  let  them  succeed  if  they  can  in  this  system  of 
practical  vexation;  it  will  avail  them  nothing,  for  ultimately  the 
majority  must  prevail.  I  must  come  to  the  fact.  They  must  be 
defeated.  So  the  courts  of  law  have  decided.  I  refer  to  your  own 
reports,  the  Pennsylvania  Reports,  in  7  Sergeant  &  Rawie,  page 
534,  the  decision  in  the  case  of  St.  Mary's  church  in  this  city,  to 
show  that  the  majority  must  govern  in  such  cases.  The  majority 
must  govern.  The  protests  of  the  New  School  show  that  they 
were  the  minority,  and  to  say  that  the  minority  shall  govern,  would, 
in  this  country,  be  every  thing  that  is  odious.  They  must  come  to 
it.     The  majority  must  govern. 

The  decisions  referred  to  in  7  Sergeant  &  Rawle  and  9th  Wen- 
dell, extend  to  every  part  of  the  whole  case.  The  voice  of  the  ma- 
jority is  omnipotent  and  binding,  however  that  voice  may  be  ascer- 
tained, whether  by  the  silent  process  of  the  Quaker,  or  the  formal 
vote  of  other  ecclesiastical  bodies.    Even  if  the  New  School  could 


445 

gain  this  case,  ihcir  triumphs  must  be  short  lived,  and  they  would 
soon  all  be  sorry  and  ashamed.  In  every  thing  of  those  most  ex- 
traordinary proceedings  in  Ranstead  court,  they  were  wrong. 
Even  their  own  friends  acknowledged  that  they  were  wrong.  The 
clerk  evades  the  question,  but  Dr.  Hill  tells  you  that  their  response 
was  an  indecent  and  indecorous  Aye,  To  avoid  the  scandal,  the 
clerk  gathers  and  records  the  proceedings  in  such  manner  as  to 
give  a  decent  appearance  to  their  minutes.  Some  advantages  were 
gained  by  suppressing  what  did  not  suit  their  purpose.  Their 
minutes  must  be  regarded  as  being  ex  parte,  and  therefore  should 
be  received  with  some  allowance.  On  the  other  hand  this  conside- 
ration must  be  self-evident,  that  we  have  nothing  to  gain  by  con- 
cealment. The  Presbyterian  Church  has  never  been  charged  with 
limiting  its  power.  On  the  other  Iiand  a  very  serious  charge  was 
preferred  against  that  church,  some  years  ago,  when  Dr.  Ely,  and 
perhaps  some  other  gentlemen,  were  accused  of  exerting  a  kind  of 
homogeneous  influence,  in  order  to  extend  the  power  of  the  church 
by  effecting  a  connexion  between  church  and  state.  Much  \^as 
then  said  of  the  danger  the  community  was  in  from  the  iniluetice  of 
a  powerful  sect.  As  it  is  wholly  irrelevant  to  m}'  argument,  I  shall 
not  now  undertake  to  inquire  into  the  truth  or  falsity  of  these 
charges.  What  1  have  now  to  advance,  as  necessary  to  my  argu- 
ment, is  that  amongst  all  the  charges  that  have  been  made  against 
the  Presbyterian  Church,  they  have  never  before  been  charged  with 
limiting  or  attempting  to  conceal  their  power,  as  they  are  now  ac- 
cused of  doing.  But  it  is  somewhat  difficult  to  meet  vague  charges 
in  such  a  multitude  of  shapes  and  hues,  as  they  sometimes  assume. 
The  best  wa}^  perhaps  is  to  treat  all  charges  which  are  not  provea- 
ble  as  slanders.  The  Presbyterian  Church  has  no  doubt  wished  to 
extend  her  influence  by  propagating  the  gospel,  and  their  zeal  in 
this  respect  is  proverbial.  That  they  should  wish  to  engraft  their 
principles  on  the  stock  of  the  wild  vine,  by  a  conversion  of  the 
heathen  and  others  to  Presbyterianism,  is  perfectly  natural ;  and 
that  the  churches  which  they  have  planted  and  nursed  with  so 
much  care,  should  yield  a  ready  obedience,  is  altogether  reasona- 
ble. But  the  church  is  without  civil  power,  and  does  not  claim  to 
exercise  it.  Nor  have  they  ever  exercised  their  power  for  the  pur- 
pose attributed  to  them.  The  church  certainly  can  exercise  the 
legitimate  power  conferred  on  it  by  its  charter.  On  this  subject 
there  need  be  no  controversy.  The  propositions  which  were  made 
by  the  Old  School  party  did  not  interfere  with  any  of  the  great  in- 
terests of  the  minority. 

This  abrogation  of  the  Plan  of  Union,  in  order  to  justify  the  cla- 
mour which  has  been  raised  against  it,  must  be  shown  either  to  have 
been  the  violation  of  a  contract,  or  to  have  affected  the  rights  of 
property  acquired  under  it.  Was  the  plan,  then,  a  contract?  I 
have  asked,  where  are  the  parties?  but  I  cannot  find  them.  From 
its  language  it  was  merely  a  regulation  or  series  of  regulations, 
approved  by  the  Assembly,  but  no  contract,  having  no  consideration 
which  is  essential  to  the  nature  of  a  contract.  It  was  merely  a  re- 
gulation for  a  charitable  purpose,  like  the  sending  of  missionaries 
38 


446 

to  Rangoon,  Ceylon,  or  any  where  else.  There  was  nothing  in  the 
nnanner  of  a  contract.  The  Plan  of  Union  was  not  in  the  form  of 
a  contract,  and  did  not  contain  ihe  essential  requisites  of  a  contract. 
The  General  Assembly  had  no  power  to  enter  into  a  contract  to 
admit  Congregationalists  into  the  Presbyterian  Church.  Neither 
party  supposed  that  such  would  be  the  etiisct  of  the  Plan  of  Union. 
The  General  Association  of  Connecticut  had  no  power  to  enter  into 
a  contract  at  all.  It  is  Congregationalists  only  who  are  supposed 
to  be  affected  by  the  abrogation  of  that  plan.  But  the  New  School 
party  have  taken  part  with  the  Congregationalists.  They  are  the 
advocates  of  retaining  their  connexion  with  the  Congregationalists. 
They  will  not  consent  that  they  shall  be  excluded  from  them.  Each 
party  was  at  liberty.  It  was  perfectly  in  the  power  of  each  (the  Pres- 
byterians and  Congregationalists)  to  terminate  the  Plan  of  Union  at 
any  time,  and  without  injustice  to  either.  The  power  was  mutual, 
and  either  could  terminate  it  at  pleasure.  The  question  need  not 
be  raised  whether  the  power  extended  to  both  Presbyterians  and 
Congregationalists.  It  is  admitted  that  it  did.  Those  Congregational 
churches  could  not  exercise  any  power  in  the  Presbyterian  Church 
without  the  consent  of  said  church.  The  state  of  Pennsylvania  is 
a  government  within  another  government,  that  of  the  United  States; 
and  the  legitimate  powers  and  functions  of  each  being  defined  by 
the  constitution,  neither  can  exercise  the  powers  of  the  other.  If 
the  state  of  Pennsylvania  should  declare  war  against  a  foreign  go- 
vernment, or  raise  troops  within  the  jurisdiction  of  a  foreign  go- 
vernment, it  would  be  treason,  and  punishable  as  such  by  the  laws 
of  the  United  States.  If  any  portion  of  the  citizens  refuse  to  obey 
the  laws  of  the  United  States,  such  refusal  is  war  against  the  govern- 
ment. So  when  a  portion  of  the  Presbyterian  Church  refused  to 
obey  the  laws  of  the  church,  as  decreed  by  the  General  Assembly, 
it  was  treason.  The  General  Assembly  had  the  authority  to  govern 
the  whole  church  under  the  constitution.  If  I  make  a  false  assump- 
tion the  other  party  can  correct  me.  I  refer  for  support  of  my  po- 
sition to  "  Vattell's  Law  of  Nations,"  page  95. 

The  Plan  of  Union  was,  however,  gentlemen,  a  mere  temporary 
arrangement  for  the  new  settlements  on  the  western  frontier,  those 
who  were  not  yet  ready  to  enter  into  the  Presbyterian  Church,  and 
it  could  be  terminated  at  any  time  when  the  necessity  which  ori- 
ginated it  had  passed.  But  what  I  wish  to  turn  your  attention  to, 
is  a  point  on  which  there  will  be  little  difficulty  in  obtaining  a  full 
understanding.  Mr.  Meredith  did  not  commit  himself  on  this  point. 
The  Plan  of  Union  was  not  entered  into  in  a  constitutional  manner, 
because  neither  the  General  Assembly,  nor  the  General  Association 
of  Connecticut  had  any  power  to  enter  into  such  an  arrangement. 
Mr.  Meredith  did  not  enter  into  an  investigation  of  this  point.  He 
took  it  for  granted  that  they  had  the  power.  But  strike  this  out, 
and  the  whole  will  manifestly  appear  to  be  irregular  and  void. 
The  land  marks  should  not  be  overlooked,  or  we  may  often,  without 
consideration,  defend  an  act  of  usurpation.  If,  indeed,  the  plan  had 
been  constitutionally  enacted,  and  rights  acquired  under  it,  those 
rights  must  be  regarded. 


447 

During  the  protectorate  of  Oliver  Cromwell,  the  election  of  mem- 
bers of  parliament  passed  into  a  mere  shadow.     During  that  most 
daring  usurpation,  every  thing  was  organized  according  to  the  will 
of  the  nominally  republican  head  of  the  English  nation,  who  was  a 
monarch  in  every  thing  but  the  name.     Yet,  during  that  usurpation, 
the  enlightened  and  independent  judge,  Sir  Matthew  Hale,  did  not 
fail  to  administer  the  laws  with  an  impartial  and  strict  regard  to 
justice,  and  there  was  perfect  security  for  the  citizen  and  his  pro- 
perty, though  under  an  usurped  government.     And  after  the  king 
was' restored,  in  justice  to  others,  every  contract  which  the  govern- 
ment, under  the  usurper,  had  made,  was  fulfilled.     The  nation  re- 
mained the  nation  still.     So  the  French  king,  who  succeeded  that 
arch  usurper  Napoleon  Bonaparte,  redeemed  the  credit  of  the  nation, 
by  fulfilHng  all  contracts  which  had  been  entered  into  by  the  usurper, 
as  head  of  the  French  empire.     Such  must  always  be  the  case  with 
a  body  which  continues  in  existence;  as  the  nation  was  not  dissolved 
by  the  usurpation.     But  the  General  Assembly  of  the  Presbyterian 
Church  exists  only  during  its  sessions  in  each  year.     It  is  totally 
dissolved  when  it  closes  its  session;  and  a  new  General  Assembly 
is  summoned  to  meet  the  next  year.     Consequently,  the  acts  of  a 
Presbyterian  General  Assembly  are,  and  would  be,  void,  when  they 
undertake  to  bind  a  future  General  Assembly,  and  so  far  as  they 
are  at  variance  with  the  law  of  the  land,  or  the  principles  of  Presby- 
terianism.     The  Presbyterian  Church  has  been  remarkable  for  the 
zeal  with  which  they  have  adhered  to  their  strict  form  of  church 
government.     Now  it  must  be  evident  that  if  committee-men  are 
admitted  into  the  church  sessions  or  presbyteries,  the  Presbyterian 
order  of  government  would  be  so  far  overturned.     It  would  make 
no  difference  from  what  church  they  came,  so  as  they  were  not 
Presbyterians.     The  Presbyterian  Church  ordains  elders  for  life, 
and  these  only,  together  with  the   ministers,  can  enter  into  the 
church  sessions,  and  other  judicatories  of  the  church.     Cqmmittee- 
men  cannot  consistently  sit  in  the  General  Assembly,  nor  can  they 
be  represented  there.     All  the  ministers  and  one  lay  member  from 
each  session  compose  the  presbytery,  and  the  presbytery  alone  can 
send  an 'elder  as  a  lay  delegate  to  the  General  Assembly.     The 
elders,  as  well  as  the   ministers,  are  ordained  for  life,  and  retain 
their  stations  unless  they  are  removed  by  the  authority  of  the  church. 
But  this  plan  introduced  a  representation  not  Presbyterian.     The 
other  party  have  alluded  to  the  inequality  of  the  clerical  and  lay 
constituency  of  the  Presbytery  of  Newburyport.     I  refer  to  it  only 
to  say  that  it  is  a  matter  with  which  the  courts  have  nothing  to  do. 
It  was  a  matter  exclusively  for  the  General  Assembly,  and  they 
have  attended  to  it.     The  Presbyterian  Church  has  ever  professed 
and  maintained  the  doctrine  of  Divine  decrees,  which  was  promul- 
gated by  John  Calvin,  and  for  refusing  to  acknowledge  which  Michael 
Servetus  was  driven  from  Geneva.     That  the  Plan  of  Union  pro- 
vided for  the  support  of  this  doctrine  does  not  appear. 

But  there  is  something  of  more  importance  with  which  we  have 
to  do.  That  is,  the  inconsistency  of  the  Plan  of  Union  with  the  act 
of  incorporation.     That  act  incorporates  as  trustees,  ministers  and 


448 

elders,  and  it  extends  no  further  than  to  Presbyterians.  If  it  incor- 
porates any  thing  else,  I  am  not  able  to  perceive  it.  This  plan  in- 
troduced comnaittee-rnen.  The  corporation  is  to  be  elected  by  the 
General  Assembly,  and  to  be  directed  by  them,  so  that  in  fact  th6 
General  Assembly  is,  after  all,  the  essence  of  the  corporation,  and 
not  the  trustees,  they  being  but  the  name  of  the  corporation,  all  the 
actual  power  of  which  is  in  the  General  Assembly,  though  the  trus- 
tees are  in  law  the  real  corporation.  The  books  distinguish  cases 
of  this  kind.  The  "  ministers  and  elders"  then  are  essential  to  the 
existence  of  the  corporation,  because,  as  they  elect  the  trustees,  the 
corporation  would  be  vacated  unless  vacancies  were  supplied  by 
the  General  Assembly,  in  the  manner  provided  for  in  the  act  of  in- 
corporation, that  is,  by  ministers  and  elders  regularly  constituting 
the  General  Assembly.  It  would  be  a  violation  of  that  act  to  admit 
Congregationalists  to  the  enjoyment  of  the  corporate  privileges,  or 
the  election  of  trustees,  as  much  as  if  dii^erent  sects  under  diflerent 
church  governments  should  be  permitted  to  enjoy  those  rights  and 
privileges  in  common  with  the  Presbyterians.  Now,  had  the  As- 
sembly chosen  to  associate  in  their  body  Mussulmen  and  Hindoos, 
would  it  not  be  a  violation  of  the  charter?  And  if  a  subsequent 
General  Assembly  did  not  interfere  to  correct  the  irregularity, 
would  not  the  charier  be  forfeited?  They  must  admit  that  if  the 
Plan  of  Union  introduces  any  thing  into  the  Presbyterian  Church 
that  is  not  strictly  Presbyterian,  it  is  null  and  void.  The  court  must 
consider  it  an  encroachment  on  original  rights  which  were  inherent 
in  the  Presbyterian  Church  a  century  ago  Something  was  said  by 
the  counsel  about  fundamental  right ;  and  divers  laws  were  referred 
to.  But  what  the  supreme  court  has  set  aside  as  unconstitutional, 
or  what  the  legislature  has  repealed,  confers  no  right  at  all.  If  the 
construction  of  the  Plan  of  Union,  by  which  those  C'ongregational- 
ists  within  the  bounds  of  the  four  synods  came  in  be  correct,  then 
any  othej's  may  come  in,  in  the  same  manner,  and  connect  them- 
selves with  the  Presbyterian  Church. 

But  let  us  look  for  a  moment  at  the  condition  and  character  of 
the  churches  which  came  in  under  the  Plan  of  Union.  The  oppo- 
site counsel  would  persuade  you  that  they  were  all  Presbyterian. 
Mr.  Squier  tells  you  in  his  testimony  that  some  of  them  were  in  ah 
initiate  state.  But  it  seems  that  according  to  the  wishes  of  those 
gentlemen,  they  may  be  initiate  forever!  Such  a  state  of  things  is 
not  provided  for  in  the  constitution,  even  if  a  young  church  could 
not  comply  with  the  order  in  full.  And  it  appears  that  these  initiate 
churches  are  permitted  to  exercise  a  controlling  influence  over 
Presbyterianism  in  some  of  these  synods. 

Now,  a  word  in  regard  to  the  argument  from  acquiescence, 
which  lias  been  urged  on  the  other  side.  On  this  subject  the  autho- 
rity of  Dallas  is  full  and  conclusive,  that  no  length  of  acquiescence 
in  an  unconstitutional  act  can  make  it  valid.  He  lays  down  the 
position,  in  accordance,  indeed,  with  all  our  notions  on  these  sub- 
jects, that  "the  legislature  must  conform  to  the  constitution,  or  its 
acts  are  void."  And  again,  that  "  the  constitution  remains  stable 
and  permanent,  amid  all  conflicts  of  parties;"  and  that  it  is  the 


449 

"duty  of  the  courts  to  stand  by  the  constitution"  in  every  emer- 
gency. I  refer  to  this  to  show  that  the  Plan  of  Union  being  uncon- 
stitutional, no  length  of  acquiescence  could  give  it  force  or  prevent 
its  being  repealed.  Beside,  the  nature  of  the  case  prevents  the  argu- 
ment having  any  appropriate  place  here.  Acquiescence,  indeed,  in 
matters  of  conscience !  It  is  impossible.  Though  acts  committed 
in  ignorance  may  be  innocently  done,  yet  when  the  error  is  disco- 
vered, the  act  is  void.  To  this  effect  are  the  decisions  of  the  courts 
in  cases  of  marriage,  when  a  previous  husband  is  subsequently 
ascertained  to  be  alive;  and  of  administration  of  an  estate,  when 
there  is  an  executor  ascertained  to  have  been  appointed  by  will. 
On  this  subject  of  acquiescence,  also,  his  honour  has  led  the  way 
in  a  signal  case,  deciding  that  where  property  is  given  or  devised 
for  any  particular  purpose,  the  will  of  the  donor  must  be  carried 
into  effect,  however  long  an  acquiescence  in  a  contrary  course  may 
have  been  yielded.  In  the  case  of  the  Franklin  Square  in  this  city, 
which  was  devised  by  William  Penn  to  the  city  of  Philadelphia  for 
a  specific  object,  that  of  a  public  square,  and  part  of  which  had  been 
occupied  as  a  burial  place  by  the  German  congregation,  for  up- 
wards of  a  hundi'ed  years.  But  as  their  occupation  thereof  was 
ascertained  to  be  contrary  to  the  will  of  the  donor,  they  could  not 
retain  possession.  Though  their  occupancy  originated  in  an  inno- 
cent misapprehension  of  their  right,  and  their  possession  had  been 
acquiesced  in  for  so  long  a  period,  the  case  was  not  altered.  This 
principle  is  frequently  acted  on  by  nations  as  well  as  individuals. 
It  is  older  than  the  Declaration  of  Independence.  It  was  acknow- 
ledged when  King  John  subscribed  that  famous  document  called 
Magna  Charta.  It  existed  even  in  the  days  of  Egbert.  It  is  the 
common  law  of  England  and  America.  Recently  in  the  city  of 
New  York,  property  to  the  value  of  millions  of  dollars  was  reco- 
vered on  this  ground.  I  might  produce  many  proofs  of  the  cor- 
rectness of  my  argument  on  this  point.  The  decree  of  Chancellor 
Pennington,  of  New  Jersey,  in  the  case  of  the  Society  of  Friends, 
may  be  adduced  as  one.  I  allude  to  that  decision  so  far  as  it  re- 
lated to  the  property  immediately  in  dispute,  which  was  decreed  to 
the  Orthodox  party,  which  had  commenced  the  suit.  I  do  not  refer 
to  the  advice  which  he  gave  to  the  parties  to  settle  all  controver- 
sies amicably  ;  which  was  regarded  as  being  favourable  to  the  other 
party.  I  merely  refer  to  his  decision  as  regarded  the  property 
which  was  the  immediate  cause  of  that  suit.  The  decision  in  the 
case  of  Duncan  against  the  Ninth  Presbyterian  Church  in  Philadel- 
phia, turned  on  the  construction  of  a  will  which  Mary  Duncan  had 
given.  The  case  of  the  Duane-street  Presbyterian  Church  in  New 
York  turned  on  the  same  principle. 

The  will  of  the  donors  is  an  important  point  in  the  question  now^ 
before  you.  The  will  of  the  donors  was,  that  the  properly  should 
belong  to  the  General  Assembly  of  the  Presbyterian  Church,  and 
the  ordination  of  elders  is  an  essential  article  in  the  government  of 
that  church.  Our  country  has  recently  been  filled  with  apprehen- 
sion of  a  war  with  Great  Britain  respecting  our  north-eastern  boun- 
dary.    We  had  acquiesced  in  a  state  of  things  which  left  a  large 

38* 


450 

territory  in  the  possession  of  England  for  many  years;  yet  now. 
when  we  understand  our  right,  we  claim  it  at  every  point.  Of  the 
same  snored  character  are  constitutional  principles  and  constitu- 
tional rights,  and  however  long  acquiescence  may  have  been  given 
to  their  violation,  when  the  wrong  is  discovered,  it  must  be  cor- 
recAed.  The  Plan  of  Union  then  must  be  invalid,  as  it  interferes 
with  these  rights.  And  it  will  be  strange  indeed  if  you  by  your 
verdict  do  not  restrain  these  New  School  men  from  interfering 
with  the  charities  and  charitable  funds  of  the  church.  At  least  we 
think  that  it  is  specially  necessary  that  the  common  law  relative 
thereto  should  be  enforced,  so  as  to  prevent  such  an  interference. 

But  is  there  any  allegation  of  a  violation  of  rights  of  property, 
by  these  acts  of  1837?  the  only  question  which  could  properly 
have  been  brought  to  the  jury.  There  is  no  such  thing.  The  evi- 
dence of  the  contributions  from  these  synods,  was  admitted  only  to 
show  the  acquiescence  of  the  Assembly  in  their  connexion.  1  am 
corrected;  it  was  to  show  the  recognition  of  the  presbyteries  in 
those  bounds,  by  the  Assembly,  as  a  part  of  the  church.  Well,  it 
was  not  as  a  claim  of  property,  for  the  settlement  of  an  account. 
Therefore,  all  questions  in  regard  to  property,  will  be  rightly  ad- 
justed by  our  victory  in  this  suit.  They  have  not  a  particle  oi 
claim  to  the  property.  None  of  their  funds  have  gone  into  the  cof- 
fers of  the  General  Assembly:  they  have  cost  us  far  more  than  we 
have  received  from  them.  They  were  recognised,  or  their  anomar 
lous  relation  acquiesced  in,  it  is  true.  It  was  always  a  bad  ar- 
langement,  and  it  was  particularly  so  in  1837;  therefore  we  ab- 
rogated it.  They  had,  then,  no  claim  on  the  score  of  property. 
Nor,  above  all,  was  there  any  ground  for  the  pretence,  that  the  acts 
of  1837  were  a  condemnation  without  a  hearing.  There  was  no 
trial,  nor  condemnation.  The  Assembly  had  no  jurisdiction  to  try 
or  condemn  them.  These  Congregational  churches  did  not  belong 
to  us,  and  all  that  we  did  by  those  acts,  was  to  say  so;  to  abrogate 
the  plan,  and  declare  the  churches  not  to  be  connected  with  us. 
We  are  not  willing  that  the  jury  should  be  under  a  wrong  impres- 
sion in  relation  to  ecclesiastical  law.  It  is  not  as  has  been  stated. 
The  resolution  of  1837,  in  relation  to  the  Western  Reserve  synod, 
was  not  a  resolution  of  condemnation  and  disownment,  but  it  was 
a  declaration  resulting  from  the  abrogation  of"  the  Plan  of  Union.^' 
That  Plan  of  Union  was  never  sent  down  to  the  presbyteries,  and, 
of  course,  was  unconstitutional.  When  the  resolution  in  relation  to 
the  Western  Reserve  synod  was  adopted,  it  had  been  fairly  proved 
that  no  plan  of  separation  could  be  devised,  which  the  New  School 
party  would  agree  to.  But  if  that  resolution,  and  the  one  relative 
to  the  other  three  synods,  were  wrong,  that  was  not  a  justification 
of  these  New  School  men,  as  two  wrongs  never  made  a  right. 
They  protested,  throughout,  against  being  made  the  subject  of  re- 
buke, and  yet  they  now  insist  that  citation  and  trial  would  have 
been  the  proper  course  of  proceeding.  How  inconsistent !  Do  they 
complain  of  us  because  we  had  the  majority?  They  cannot  com- 
plain that  they  had  not  the  same  opportunity  of  voting  that  we  had. 
That  they  should  be  ministers  and  elders  was  a  necessary  qualifi- 


451 

cation  for  voting  in  the  General  Assembly.  If  they  are  not  minis- 
ters and  elders,  they  cannot  rightfully  be  represented,  nor  vote  in 
the  General  Assembly.  But  the  union  of  the  Associate  Reformed 
Church  with  the  General  Assembly,  is  alluded  to  in  glowing  terms 
by  the  opposite  counsel,  and  they  say  that  that  church  only  re- 
ceived the  standard  of  the  church  in  substance.  They  make  all  to 
turn  on  the  one  little  word  "  in  substance."  But  those  words,  as 
used  by  the  Associate  Church,  do  not  refer  to  the  C'onfession  of 
Faith,  nor  to  the  acknowledgment  of  it,  as  these  New  School  claim 
the  privilege  of  using  it.  On  page  44  of  the  constitution  of  the 
Associate  Church,  you  will  see  that  they  receive  it  as  "  in  sub- 
stance," the  only  form  of  government  given  by  the  great  Head  of 
the  church.  They  fully  receive  the  Westminster  ('onfession  of 
Faith,  and  that  is  the  great  polar  star  of  Presbyterians.  They  who 
do  not  receive  the  whole  of  it,  are  not  Presbyterians.  A  small 
alteration  was  made  in  their  constitution  in  1799,  but  none  took  place 
afterwards,  and  these  New  School  gentlemen  cannot  prove  that  they 
are  Presbyterians  on  this  ground.  On  the  contrary,  it  appears  by 
the  minutes  of  1801,  that  they  were  Congregationalists  who  were 
thus  brought  into  the  church.  Well,  our  opponents  show  you  the 
presbytery  of  Newburyport,  for  the  purpose  of  exhibiting  a  long  list 
of  ministers  and  licentiates  preaching  to  Congregational  Churches; 
and  that  presbytery  in  the  Synod  of  Albany  was  retained,  while 
the  Synod  of  the  Western  Reserve,  and  others  having  no  such 
churches,  were  cut  off.  A  word  of  explanation  may  be  necessary 
in  relation  to  this,  as  Mr.  Meredith  placed  so  great  stress  on  it,  and 
endeavoured  to  make  you  believe  that  it  was  similarly  circum- 
stanced with  the  Synod  of  the  Western  Reserve,  or  far  worse  than 
that. 

But  the  General  Assembly  ascertained  that  the  Western  Reserve 
synod  contained  the  larger  body  of  Congregational  churches,  while 
those  alluded  to  in  the  Synod  of  Albany,  did  not  belong  to  the 
presbytery,  and  the  other  presbyteries  in  that  synod  contained 
none.  Those  Congregational  churches  were  not  represented  in  the 
General  Assembly,  while  in  the  synod  of  the  Western  Reserve  they 
were,  although  they  were  not  reported  as  Congregational  churches. 
Why,  says  my  friend,  may  not  a  Presbyterian  minister  preach  to 
Congregationalists,  when  he  may  preach  to  heathen  without  cen- 
sure? But  that  is  quite  a  different  thing  from  Congregationalists 
being  represented  in  the  General  Assembly,  a  matter  which  must 
be  regarded  as  receiving  no  sanction  from  that  body.  Though 
they  were  willing  to  put  on  the  list  all  ministers  who  had  a  right 
to  belong  to  a  presbytery,  there  should  not  be  one  of  the  Congrega- 
tional churches  represented  in  the  Assembly. 

The  argument  of  my  friend,  respecting  the  excision  of  Presbyte- 
rian ministers,  merely  because  of  their  removing  into  the  bounds  of 
the  excinded  presbyteries,  is  equally  delusive,  as  they  would  not  be 
cut  off,  if  they  had  not  become  connected  with  those  presbyteries. 

Nearly  the  whole  of  some  presbyteries  were  composed  of  mixed 
churches,  or  Congregationalists.  I  do  not  allude  to  this  for  any 
other  purpose  than  as  a  collateral  circumstance.     They  have  ex- 


452 

claimed  against  the  General  Assembly,  because  it  disowned  the 
Western  Reserve  synod,  which  admitted  Congregationalists,  be- 
cause the  General  Assembly  does  not  admit  CongregationaHsts  at 
all.  I  do  not  know  how  they  could  admit  a  presbytery  to  be  re- 
presented, which  is  composed  of  one-half  Presbyterians,  and  one- 
half  CongregationaHsts.  For  if  they  can  do  this,  they  can  admit  a 
presbytery  to  be  represented,  one-half  of  which  are  Christians,  or 
no  Christians.  Confusion  must  be  the  consequence  of  all  such  un- 
natural mixtures  and  amalgamations.  There  is  no  single  congre- 
gation in  the  Western  Reserve  synod,  which  is  purely  Presbyterian 
in  doctrine  and  order,  and  yet,  in  1837 — 

[Mr.  fVood  objected.  He  said,  such  was  not  at  all  the  fact,  nor 
was  there  any  such  thing  in  evidence.] 

With  all  respect  for  the  opposite  counsel,  and  for  you,  gentle- 
men, I  must  insist  on  what  my  duty  to  my  clients  requires  of  me. 
I  do  not  know  what  point  this  case  may  turn  on,  and  therefore  I 
wish  to  lay  all  the  points  before  the  jury,  as  they  occur  to  me.  I 
wish  to  show,  that  in  1837,  the  resolutions  which  were  adopted 
merely  for  the  purpose  of  preventing  their  thus  introducing  Con- 
gregationalists, has  been  improperly  termed  an  excision.  Certainly, 
an  inquiry  in  relation  to  that  of  which  the  New  School  party  com- 
plain, will  not  be  deemed  irrelevant,  as  it  is  material  to  a  correct 
decision.  I  know  of  no  exception  to  the  remark  which  I  made,  ex- 
cept the  congregation  of  Middlesex.  But  I  will  refer  to  page  125 
of  the  minutes  of  1837,  as  they  have  been  given  in  evidence,  with 
a  view  of  showing,  that  though  there  were  belonging  to  the  synod 
of  the  Western  Reserve  one  hundred  and  thirty-nine  churches, 
there  are  only  twenty-five  that  are  purely  Presbyterian.  But  as  it 
is  objected  to,  I  will  not  mind  it.  It  is  a  matter  of  no  consequence. 
The  case  will  not  turn  on  it.  The  General  Assembly  decided  the 
question  as  they  had  a  right  to  decide  it,  when  they  determined 
that  the  synod  of  the  Western  Reserve  should  no  longer  be  consi- 
dered a  part  of  the  Presbyterian  Church.  The  resolution  after- 
wards passed,  relative  to  the  other  three  synods,  was  nearly  of  a 
similar  character.  I  shall  not  enter  into  an  examination  of  the 
particulars. 

We  have  then  shown  you,  gentlemen,  that  the  abrogation  was 
within  the  power  of  the  General  Assembly,  and  that  in  consequence 
of  it,  those  synods  were  properly  declared  to  be  out  of  the  Presby- 
terian Church.  But  if  I  have  failed  in  this,  the  other  side  have  yet 
to  show  the  validity  of  their  organization  in  1838.  The  latter  ques- 
tion is  held  to  depend,  in  a  great  measure,  on  the  former;  therefore, 
was  it  necessary  to  review  every  thing  that  was  done  by  the  Gene- 
ral Assembly  in  1837?  I  wish  you,  gentlemen,  to  recollect  that  the 
validity  of  the  proceedings  of  the  General  Assembly  of  1837  was 
acknowledged  in  1838.  Both  parties  treated  those  proceedings  as 
valid.  Now  the  relators  in  this  case  come  here  claiming  to  be  the 
legitimate  trustees.  They  acknowledge  the  validity  of  the  election 
of  trustees  in  1837,  though  they  were  elected  by  the  General  As- 
sembly of  1837,  after  the  passage  of  the  acts  of  excision,  as  they 
have  been  termed. 


453 

In  approaching  this  part  of  my  argument  I  should  be  extremely 
glad  to  avail  myself,  if  my  friend  Meredith  had  furnished  it,  of  & 
glossary  for  his  text.  There  was  need  of  this,  as  he  interlarded  so 
much  classical  lore  in  his  argument;  and  there  is  no  man  better  ac- 
quainted with  the  classics  than  he  is.  But  besides  this,  he  seems  to 
have  come  into  court  with  his  Ovid  faculty  for  turning  every  thing 
to  suit  his  purpose,  and  converting,  as  is  necessary  for  his  case; 
every  thing  into  its  contrary.  He  makes  every  thing  on  their  part 
orderly  and  beautiful,  and  on  ours,  outrageous  and  scandalous.  It 
is  my  duty,  however,  to  turn  aside  from  the  most  agreeable  picture 
•which  he  has  drawn  of  his  New  8chool  friends,  and  bring  you  bacfe 
to  the  actual  facts  in  the  case.  At  no  distant  day  you  will  have  to 
decide  the  question,  whether  the  charitable  funds  of  the  Presbyte- 
rian Church,  which  have  been  accumulating  for  fifty  years,  shall 
be  given  to  this  New  School  party,  or  whether  they  shall  remain 
where  the  will  of  the  donors  intended  that  they  should:  whether 
that  venerable  gentleman,  (Dr.  A.  Green,)  shall  be  ousted  from  the 
office  of  trustee,  which  he  has  held  for  fifty  years;  whether  it  has 
been  reserved  to  a  time  like  this  to  countenance  such  scandalous 
proceedings,  to  take  from  him  what  he  holds  dearer  than  life  itself, 
the  name  and  character  of  the  church  of  his  fathers.  Shall  the 
friends  of  anarchy  and  arbitrary  power  be  permitted  to  turn  them 
out,  and  hold  them  up  to  the  world  as  having  become  apostates  and 
tyrants  ?  There  has  no  event  taken  place  of  late  years,  in  this  land, 
which  displays  the  innate  depravity  of  man  in  so  striking  a  manner, 
as  the  scenes  enacted  in  Ranstead  court  on  the  17th  of  May,  1838. 
There  were  beheld  two  bodies,  each  claiming  to  be  the  true  church, 
and  each  denouncing  the  other  as  false.  It  is  our  duty  to  find  out 
which  of  these  bodies  was  the  true  General  Assembly  of  1838, 
after  their  separation  from  each  other. 

We  set  out  on  the  broad  basis,  that  the  moderator  and  clerks 
were  in  the  proper  discharge  of  their  duty;  and  it  being  anticipated 
that  there  would  be  interruption  to  the  regular  proceedings  by  these 
New  School  men,  a  crowd  was  drav^'n  together  out  of  curiosity. 

There  was,  then,  a  moment  when  Dr.  Elliott  and  the  clerks  were 
in  their  proper  place,  they  were  duly  there.  Here,  then,  is  an  argu- 
ment of  which  they  cannot  deprive  us,  though  they  are  bound  to  do 
so,  in  order  to  have  any  ground  to  stand  on.  When  Mr.  Meredith 
assigns  to  m}'^  clients  the  situation  of  conspirators,  there  is  not  a 
doubt  that  he  has  described  the  position  of  the  other  party.  At  the 
close  of  the  minutes  of  the  Assembly  of  1837,  you  read  what  seem- 
ed the  dissolution  of  the  Assembly.  There  has  been  some  little 
question,  but  it  is  not  material  in  regard  to  the  exact  nature  of  this 
closing  act.  According  to  it,  however,  the  Assembly  separated  in 
peace,  and  the  new  body  came  together  at  the  proper  time.  It  cer- 
tainly was  not  an  adjournment.  We  contend  that  it  was  a  disso- 
lution. Yet  not  strictly  and  entirely  a  dissolution,  not  an  annihila- 
tion, because  the  officers  held  over.  Strictly  speaking,  the  inodera- 
tOr  of  the  General  Assembly  of  1837  was  the  germ  of  the  General 
Assembly  of  1838.  There  was  remaining  just  enough  of  vitality  to 
secure  a  regular  organization  in  the  new  Assembh^     As  in  the 


454 

House  of  Representatives  of  the  United  States  Congress,  the  clerk 
calls  the  new  House  to  order,  and  may  be  said  to  preside  until  a 
speaker  is  elected  and  the  new  House  organized.     The  long  and 
short  of  the  matter  is,  in  the  Presbyterian  Church,  a  germinating 
principle  w^as  preserved  from  the  old  Assembly,  which  was  the  con- 
necting link  between  the  old  and  the  new,  and  that  germ  was  the 
moderator  and  the  clerks.     If  they  had  not  standing  rules  to  go  by, 
the  newly  elected  Assembly  might  be  thrown  into  confusion.     The 
new  General  Assembly  was  duly  summoned  and  convened.     The 
presbyteries  thereof  were,  according  to  the  standing  rule  of  order, 
directed,  at  the  close  of  the  Assembly  of  1837,  to  elect  commission- 
ers to  another  General  Assembly  to  be  held  the  next  year.     The 
synods  are  overlooked,  and  the  delegates  come  direct  from  the 
presbyteries.     All  things  were  thus  prepared,  for  a  formal,  and  as 
we  hoped,  for  a  harmonious  organization.     Nothing  had  occurred 
■with  us,  as  with  the  other  party,  of  consultation  with  "  counsel 
learned  in  the  law."     Nor  had  we  formed  plans  for  any  unnatural 
commixture  of  others  with  Presbyterians.     Well,  when  the  dele- 
gates meet,  the  moderator  constitutes  the  new  Assembly,  by  a  so- 
lemn appeal  to  the  throne  of  grace.     The  germinating  property 
''emains  in  the  moderator  and  the  clerks  of  the  old  Assembly;  and 
it  was  an  outrageous  interruption  of  the  proceedings,  to  interfere 
"with  the  moderator  and  clerks  whilst  they  were  engaged  in  the  dis- 
charge of  their  duty,  in  the  incipient  stage  of  the  organization. 
But  the  New  School  party  had  held  a  council  previous  to  the  meet- 
ing of  the  General  Assembly  of  1838.     There  were  more  than  a 
hundred  convened  in  that  council,  but  the  result  of  their  proceed- 
ings reminds  me  of  the  remark  of  the  former  vice-president  of  the 
United  States,  Aaron  Burr, — that  "  in  the  multitude  of  counsellors 
there  is  sometimes  confusion."     Ten  to  one  but  you  will  find  it  so 
in  all  caucuses.     The  scene  exhibited  in  the  Seventh  Presbyterian 
Church  was  contrary  to  both  law  and  gospel.     Their  counsellors 
led  them  into  confusion.     The  appointing  of  the  trustees  was  in 
legal  form,  we  admit,  provided  the  New  School  Assembly  shall  be 
adjudged  to  be  the  true  legal  General  Assembly  of  the  Presbyterian 
Church.     That,  therefore,  is  the  important  point  for  you  to  deter- 
mine.    Our  province  is  to  show  you  that  they  were  not  legally  or- 
ganized as  a  General  Assembly.     The  rule  of  order  requires,  that 
in  case  the  moderator  should  fail  to  execute  the  duties  of  his  office, 
the  next  preceding  moderator  should  take  the  chair.     To  call  an- 
other member  to  the  chair,  under  any  pretext  whatever,  was  a  vio- 
lation of  order.     As  there  were  several  present,  who  had  been 
moderators  since  Dr.  Beman  was,  it  was  peculiarly  disorderly  to 
place  him  in  the  chair. 

This  rule  should  have  been  regarded,  for  such  persons  as  were 
present  who  had  been  moderators,  must  have  had  the  preference, 
according  to  the  rule,  over  every  other  member.  But  we  must 
examine  the  several  points  particularly.  What  now  should  have 
been  done  in  this  stage  of  the  proceedings?  All  was  plainly  pre- 
scribed, and  the  practice  uniform.  I  will  recite  the  opening  minutes 
of  the  Assembly  of  1837,  as  an  example,  in  conformity  with  the 


455 

prescribed  forms.  [See  previous  page  47.]  All  others  are  like 
this,  and  show  that  questioned  commissioners  must  be  referred  to 
the  committee  of  elections.  So  they  did  in  1832,  and  on  other 
occasions;  so  their  rules  required,  and  so,  indeed,  from  the  nature 
of  the  case  they  must  do,  as  a  parliamentary  body,  independently 
of  any  rules  or  practice  on  the  subject,  if  they  had  not  such  rules. 
But  the  minutes  always  show  this  [)ractice.  A  trifling  variation  is 
only  found  in  the  'uinutes  of  1835,  from  those  which  I  have  now 
presented,  and  that  case  has  been  explained.  It  was  hut  a  trifle. 
Dr.  Hill's  testimony  shows,  if  there  were  otherwise  any  doubt  on 
the  subject,  the  uniform  practice  to  refer  to  a  committee  of  elec- 
tions. So  all  general  principles  show  the  same  thing.  Every  de- 
liberative body  must  decide  on  the  right  of  persons  to  sit  as 
members,  and  for  this  purpose  a  committee  of  elections  is  appoint- 
ed. And  this  must  be  before  the  house  is  organized. 

You  must  also  bear  in  mind,  that  the  first  business  of  the  General 
Assembly  is  to  hear  read  the  report  of  the  committee  on  commis- 
sions. Dr.  Hill  has  given  you  a  succinct  account  how  the  practice 
of  referring  the  commissions  to  the  clerks  of  the  former  Assembly 
originated.  Every  General  Assembly  had  power  to  make  laws  to 
bind  themselves  and  future  General  Assemblies,  until  they  are  re- 
pealed. By  the  rule  which  had  been  adopted,  the  clerks  were  to 
examine  all  commissions  which  should  be  presented  to  them.  All 
commissioners  were  required  to  present  their  commissions  to  them, 
as  a  committee  on  commissions;  and  it  was  their  duty  to  enter  all 
regular  commissions  on  the  roll,  and  report  them  to  the  house,  which 
was  done  in  this  case. 

Now,  suppose  that  a  member  happens  to  have  left  his  commis- 
sion at  home,  as  was  the  case  of  Mr.  Bayard  of  Princeton,  should 
ihe  house  be  thereby  diverted  from  the  practical  purposes  of  its 
creation?  The  effect  would  be  disastrous  in  the  extreme.  It  is 
therefore  required,  that  such  cases,  together  with  all  informal  or 
defective  commissions,  shall  come  under  the  supervision  of  the 
committee  of  elections.  Those  whose  commissions  are  rejected, 
must  appeal  to  this  committee. 

The  old  manuscript  minutes  which  have  been  read  by  the  other 
side,  are  apparently  brought  forward  from  a  misapprehension  of 
our  opinion  in  regard  to  the  time  when  the  committee  of  elections 
should  be  appointed.  But  on  that  subject  we  agree  to  all  which 
Dr.  Hill  has  said.  The  time,  however,  for  this  appointment,  is  im- 
mediately after  the  clerks  have  read  their  report  as  a  committee  of 
commissions- 
Even  if  all  but  fourteen  commissioners  were  rejected  by  the 
clerks,  there  could  be  no  great  danger  in  awaiting  the  decision  of 
the  committee  of  elections;  a&,  when  those  rejected  commissioners 
should  afterwards  take  their  «eats,  which  they  would  be  permitted 
to  do  if  they  were  entitled,  the  proceedings  of  the  Assembly,  pre- 
viously had,  could  be  revised,  and  if  necessary,  reversed.  So  that 
the  very  worst  that  can  be  alleged  is,  that  there  would  be  a  short 
delay  by  awaiting  the  regular  action  of  the  committee  of  elec- 
tions.    The  numerous  bodv,  the  house,  could  and  would  have  de- 


456 

cided  the  case,  when  it  should  have  come  up  in  regular  form  by 
the  report  of  the  committee  of  elections.  Then,  and  not  till  then, 
could  the  subject  be  properly  presented  to  the  house  for  legitimate 
action.  Even  Dr.  Hill  himself  admits  it  to  be  a  possible  case,  that 
there  may  not  be  more  than  fourteen  undisputed  commissioners 
present,  and  that  in  such  a  case  those  fourteen  could  legally  pro- 
ceed to  the  transaction  of  business.  The  law  in  the  case  is  abso- 
lute; and  such  a  provision  was  absolutely  necessary. 

At  this  point,  therefore,  the  most  important  in  the  case,  we  say, 
that  the  appointment  of  the  committee  of  elections  was  prevented, 
at  the  proper  time,  only  by  the  interruption  of  the  New  School 
niembers.  On  the  other  side  there  was  no  opposition.  Dr.  Elliott 
was  perfectly  acquainted  with  his  duty.  In  entering  on  an  exami- 
nation of  those  proceedings  in  1838,  I  do  not  mean  to  repeat  the 
arguments  of  the  learned  counsel  who  preceded  me  on  the  same 
side. 

My  learned  friend  on  the  other  side,  avoided  a  full  investigation 
of  one  point  connected  with  these  proceedings  during  his  argument, 
though  he  so  liberally  strewed  the  flowers  of  his  rhetoric  around 
him.  The  fact  to  which  I  now  call  your  attention  particularly,  is 
the  arrangements  which  had  been  entered  into  for  the  purpose  of 
defeating  the  measures  of  the  General  Assembly.  Now  these  pro- 
ceedings were  all  prepared  before-hand.  I  shall  principally  confine 
myself  to  what  is  proved  by  the  acknowledgment  of  the  New 
School  party. 

That  they  had  entered  into  such  an  arrangement  by  the  advice 
of  counsel  learned  in  the  law,  has  been  rung  in  your  ears  by  every 
witness.  The  bugbear  of  a  lawyer  was  continually  held  up  to  our 
view.  What  did  they  want  with  advice  of  counsel,  in  a  religious 
assembly,  if  they  had  not  been  plotting  to  deprive  us  of  our  rights? 
In  every  stage  of  this  business,  the  moderator,  who  constituted  the 
General  Assembly  with  prayer,  was  infinitely  better  acquainted 
therewith  than  the  counsel  could  possibly  be.  Dr.  Elliott  was  better 
acquainted  with  his  religious  duties  than  all  the  legal  counsel  in  the 
land.  And  yet  they  expressly  stated,  that  they  they  were  acting 
by  "  the  advice  of  counsel  learned  in  the  law."  Then,  in  regard  to 
the  time  when  the  several  motions  were  made ;  Dr.  Patton.  was 
very  desirous  to  offer  his  resolutions  at  that  time.  They  particu- 
larly marked  the  time  when  they  were  to  act.  Dr.  Mason  also 
was  very  desirous  to  have  the  names  of  the  rejected  commissioners 
added  to  the  roll  al  that  time,  and  the  same  consideration  apper- 
tained to  what  was  spoken  afterwards  by  Mr.  Cleaveland,  who  had 
been  advised  by  counsel  that  that  was  the  time.  Their  plan  of  pro- 
ceeding is  thus  shown  to  have  been  preconcerted,  or  at  least  pre- 
meditated. Dr.  Hill  told  them,  I  suppose  in  caucus,  that  they  were 
wrong.  I  do  not  complain  of  caucuses.  Every  body  has  caucuses, 
if  they  please;  but  this,  if  not  a  conspiracy  on  the  part  of  the  New 
School  men,  yet  this  premeditated  plan  for  defeating  the  Assembly 
was  radically  wrong.  So  much  so,  that  Dr.  William  Hill,  a  wit- 
ness called  by  themselves,  condemned  it  entirely.  Dr.  Hill  informs 
you  that  he  told  them  beforehand,  that  such  a  course  of  proceeding 


457 

would  be  wrong,  and  that  he  opposed  it  during  their  preliminary 
itrieeting. 

All  must  see,  that  in  the  measures  of  these  two  parties,  there  was 
far  more  manoeuvring  on  the  part  of  the  New  School  men,  than 
there  was  on  our  part.  Those  measures  were  the  result  of  a  con- 
sultation, and  when  a  case  like  this  depends  on  circumstances,  each 
one  of  which  is  small  in  itself,  while  the  whole,  collectively,  are 
important  to  the  issue,  it  is  necessary  that  they  all  should  be  laid 
before  you.     You  will  then  bear  these  little  things  in  mind. 

What  Di\  Hill  stated  was,  that  the  measure  was  wrong,  and  can 
they  then  come  into  this  Court  and  charge  us  with  a  conspiracy  to 
defraud  them  of  their  rights,  when  the  conspiracy  was  altogether 
their  own.  Dr.  Hill  tells  you  that  he  was  afraid  violence  would 
have  been  the  consequence  of  these  proceedings,  and  under  this 
impression  he  was  greatly  excited.  It  is,  therefore,  not  likely  that 
he  could  give  as  clear  an  account  of  events  like  these,  as  he  could 
have  done  under  different  circumstances.  He  heard  the  "  ayes," 
however,  and  pronounces  them  "indecently  and  offensively  loud." 
He  goes  further,  and  tells  you  that  he  was  surprised  tliat  there 
were  no  more  "  yioes,"  and  he  added  very  significantly,  that  "  if  they 
did  vote  on  the  question  at  all,  he  had  thought  that  there  would  be 
a  thundering  no"  In  a  very  candid  manner  he  adds,  that  he  sup- 
posed that  "  they  had  not  been  well  trained,"  or  "  well  drilled," 
whichever  was  the  expression.  Now  I  understand  where  Mr. 
Meredith  got  his  military  notion.  The  Old  School  party  had  not 
been  well  drilled.  It  is  surprising  that  there  should  have  been 
just  enough  noes  to  show  that  they  were  not  unanimous,  and  were 
not  "well  drilled."  But  the  Nevv  School  party  were  well  drilled. 
They  had  their  men  as  well  drilled  as  the  French  general,  or  as 
Julius  Caesar,  who,  it  is  said,  knew  every  man  in  his  army.  It  was 
shown  by  the  fcvv  straggling  and  scattering  noes,  that  the  Old 
School  party  were  not  well  drilled.  But  Mr.  Meredith  metamor- 
phoses these  unsuspecting  Christian  ministers  into  a  warlike  army. 
Yet  it  appears  that  the  other  party,  by  the  advice  of  their  "  counsel 
learned  in  the  law,"  were  carrying  into  effect  their  plan  by  taking 
advantage  of  their  unsuspecting  brethren.  They  were  determined 
to  organize  a  new  Assembly,  "  at  that  time  and  in  that  place;"  and 
in  such  a  manner  as  would  put  the  whole  of  the  property  of  the  Pres- 
byterian Church  at  their  disposal.  Yet  they  were  surprised  to  find 
that  Dr.  Elliott  and  his  friends  did  not  conquer  them  by  voting  them 
down  !  Were  they  guilty  of  great  indiscretion  in  not  voting,  when 
they  did  not  suspect  what  was  intended  by  their  adversaries'?  The 
Old"  School  men  were  in  fact  the  unsuspecting  party,  and  yet  they 
say  that  all  the  disorder  was  on  the  part  of  the  Old  School,  after 
their  own  interruption  of  the  regular  proceedings  of  the  General 
Assembly.  VVell,  the  New  School  were  not  endowed  with  pre- 
science. They  were  surprised  too.  They  never  expected  that  Dr. 
Elliott  would  refuse  to  put  the  question,  which  they  wanted  to  have 
decided  against  them,  and  on  the  ground  of  such  decision  they  in- 
tended to  base  the  organization  of  their  new  Assembly.  But  they 
were   grievously  disappointed.     By  the   arrangement   previously 

39 


458 

agreed  to  by  them,  Dr.  Pat  ton  was  to  rise  at  the  very  time  he  did, 
and  then  Dr.  Mason  was  to  rise  at  another  stage  of  the  proceed- 
ings; and  they  did  not  know  that  they  had  not  the  majority,  as  Dr. 
Hill  tells  you.  They  had  previously  agreed  to  interrupt  the  pro- 
ceedings of  a  deliberative  assembly,  in  the  manner  which  was  pre- 
sented to  you,  the  other  day,  by  the  witnesses.  The  paper  which 
Dr.  Patton  held  in  his  hand  indicated  the  course  they  were  to  pur- 
sue. But  what  course  Dr.  Elliott  would  take  they  did  not  know  ; 
and  when  he  declared  the  appeal  to  be  out  of  order,  they  were 
taken  all  aback :  but  as  they  were  pre-determined  to  break  up  the 
Assembly,  they  struck  out  a  new  course,  altogether  new  to  the 
mass  of  the  New  School  party.  Dr.  Patton  can't  get  his  question 
put,  and  Dr.  Mason  sits  down  in  utter  disappointment;  and  recol- 
lect that  he  and  Mr.  Cleaveland  were  in  a  pew  together.  Mr. 
Cleaveland  did  not  then  rise  in  his  order,  because,  as  is  quite  plain, 
they  were  altogether  disconcerted  by  the  refusal  of  Dr.  Elliott  to 
put  the  motion  of  Dr.  Mason.  Like  the  individual  who  would 
sacrifice  himself,  rather  than  suffer  others  to  escape  his  ven- 
geance, they  proceed  to  throw  the  whole  body  into  confusion. 
Another  of  these  gentlemen  applied  himself  to  the  task.  Mr.  Squier 
comes  to  their  help,  though  his  help  was  merely  nominal,  something 
like  the  help  of  young  lawyers,  more  for  their  own  advantage  than 
their  clients.  Up  jumps  Mr.  Squier  and  demands  his  seat.  But, 
poor  Squier!  he  was  all  wrong.  He  had  no  right  there  at  all,  and 
he  started  altogether  in  the  wrong  place  to  help  his  friends,  and 
was  compelled  to  sit  down  in  utter  consternation,  when  Dr.  Elliott 
said  to  him,  "  We  do  not  know  you,  sir."  Really,  every  one  of 
these  men  acted  in  a  manner  which  showed  that  they  were  dis- 
concerted indeed. 

But  Mr.  Cleaveland  at  length  arose  with  a  paper  in  his  hand. 
Where  is  that  paper?  Where  is  Mr.  Cleaveland  himself?  and 
where  is  Dr.  Beman,  the  next  prominent  actor  in  the  tragedy? 
Where  are  their  depositions?  and  why  were  they  not  read  in  evi- 
dence? How  do  you  know  that  their  depositions  were  taken?  Dr. 
Patton  said  he  had  seen  them  in  the  possession  of  the  counsel. 
Yes,  they  had  actually  taken  their  depositions,  and  yet  they  have 
not  presented  them  to  you.  They  are  the  men  who  must  know 
whether  the  questions  which  were  put  by  themselves  were  reversed 
or  not.  If  they  were  reversed  they  must  know  it  better  than  others 
could.  Why  then  not  let  them  speak  for  themselves?  Dr.  Patton 
told  you  that  their  depositions  had  been  taken,  or  my  colleague 
would  not  have  been  at  liberty  to  comment  on  the  circumstances 
of  their  not  being  produced.  The  question  was  asked  Dr.  Patton, 
in  the  course  of  his  cross-examination,  if  he  had  read  the  deposi- 
tions of  Dr.  Beman  and  Mr.  Cleaveland,  and  he  told  you  that  he 
had  read  them.  Other  gentlemen  have  been  called  on  to  detail 
these  circumstances.  But  certainly  there  must  be  some  reason  for 
suppressing  those  depositions.  It  is  strange,  indeed,  if  every  one  of 
the  witnesses  produced  by  them  both  saw  and  heard  the  motions 
reversed  and  the  negative  votes  thereon,  if  these  men  knew  nothing 
about  it;  and  yet  we  are  left  to  infer  this.    Else  why  are  they  with- 


459 

held  when  you  had  a  right  to  expect  them  ?  They  would  have 
been  the  very  best  testimony  in  the  case,  according  to  the  uni- 
versal law  of  evidence.  Mr.  Cleaveland  is  the  very  man  who  put 
that  most  important  question  which  is  the  hinge  on  which  this  whole 
controversy  turns,  and  Dr.  Beman  is  the  very  man  who  put  that 
other  very  important  question,  the  nomination  of  Dr.  Fisher.  But 
they  are  somewhere  else.  The  one  is  in  Detroit,  and  the  other  is 
gone  to  Europe.  Testimony  has  been  produced  which  renders  this 
unquestionable.  Dr.  Beman  has  taken  an  early  voyage  to  Europe 
on  account  of  his  health,  and  Mr.  Cleaveland  is  in  Michigan.  When 
they  knew  that  Dr.  Beman  was  going  abroad  they  took  his  deposi- 
tion, and  they  might  have  taken  it  if  he  had  been  going  to  China, 
for  there  is  no  part  of  the  globe  to  which  justice  will  not  reach. 
Why  did  they  not  let  us  see  that  paper?  The  Old  School  party 
would  like  that  you  should  see  that  paper.  Because,  if  Mr. 
Cleaveland  had  been  examined,  he  could  have  told  all  about  those 
things,  in  which  he  took  such  a  conspicuous  and  active  part.  No 
doubt  but  those  depositions  would  have  been  produced,  if  they  had 
not  apprehended  that  they  would  be  to  their  own  injury.  When 
people  are  going  to  do  wrong,  they  are  not  able  to  see  the  conse- 
quences of  the  wrong  they  contemplate,  and  are  frequently  caught 
in  the  net  which  they  have  spread  for  others ;  according  to  an  old 
and  very  expressive  stanza,  in  the  Version  of  Psalms  bound  up  in 
an  ancient  edition  of  the  Bible,  sometimes  called  the  Bishop's  Bible, 
printed  in  1608, 

"  He  digs  a  ditcli  and  delves  it  deepe, 

in  hope  to  hurt  his  brother^ 
But  he  shall  fall  into  the  pit, 

that  he  dig'd  up  for  other. 

"Thus  wrong  returneth  to  the  hurt, 

of  him  in  whom  it  bred, 
And  all  the  mischiefe  that  he  wrought, 

shall  fall  upon  his  head." 

Dr.  Elliott,  as  I  have  said,  was  not  in  the  secret;  and  yet  he  dis- 
arranged and  spoiled  their  plan  of  operations.  He  brought  the 
broad  principles  of  the  law  to  bear  on  them  by  calling  out  for  com- 
missions which  had  not  been  presented  to  the  clerks,  and  by  saying 
to  them,  "you  are  in  the  wrong  place."  On  this  point  another 
gentleman  has  enlightened  us  considerably.  I  allude  to  Dr.  Mason, 
and  with  great  propriety  I  can  vouch  for  him  as  my  witness.  He 
states  that  when  Dr.  Elliott  had  made  the  call  for  other  commis- 
sions, that  they  listened  to  the  call;  that  he  responded  to  the  call, 
and  that  Dr.  Elliott  replied,  "You  are  out  of  order  at  this  time,  sir." 
I  wish  you  to  pay  particular  attention  to  this  one  thing.  He  says, 
that  the  call  was  neither  more  nor  less,  than  for  those  who  "  had 
not  had  opportunity  to  present  their  commissions  to  the  clerks," 
now  to  present  them.  Thus,  notwithstanding  Dr.  Mason  was  act- 
ing a  part  somewhat  similar  to  that  of  Francis  Wronghead  (in  the 
play)  amongst  the  country  members  of  the  house  of  commons,  yet 
he  was  not  sufficiently  drilled  for  the  occasion.      The  moderator 


460 

states  the  matter  as  Dr.  Mason  did,  with  scarcely  an  immaterial 
variation.  Mr.  Hubbell  reminds  me  that  Dr.  EIHolt  stated  precisely 
the  same  thing.  But  we  have  it  from  Dr.  Mason,  an  honourable  and 
conscientious  man  of  their  own  party.  They  would  not  have  called 
him  as  a  witness,  if  they  had  known  that  his  testimony  would  be 
against  them.  But  there  was  at  least  one  man  who  understood  the 
call  of  Dr.  Elliott,  and  instantly  acted  in  obedience  to  that  call,  and 
that  was  Mr.  Joshua  Moore,  of  Huntingdon,  who  rose,  and  this  ex- 
plains the  whole  mystery.  He  rose  and  walked  to  the  clerks'  table, 
and  explained  to  them  that  he  discovered  that  he  had  left  his  com- 
mission at  his  lodgings.  But  he  rose  for  the  purpose  of  complying 
with  the  call  of  the  moderator,  as  it  was  the  right  of  every  member 
to  have  his  commission  reviewed  by  the  clerks,  previously  to  his 
name  being  entered  on  the  roll.  But  Dr.  Mason  interposed  between 
the  rights  of  the  members  (Mr.  Moo/e,  particularly)  and  the  mode- 
rator. Two  of  the  rules  of  order  are  worthy  of  particular  notice 
in  relation  to  this  matter.  [See  the  4th  and  5th  rules,  on  previous 
page,  174.] 

As  to  what  I  propose,  these  two  rules  will  render  it  simple  and 
plain  that  the  appointment  of  the  Committee  of  Elections  could  not 
be  dispensed  with,  as  the  first  business  in  the  regular  course  of  pro- 
ceedings. The  New  School  party,  though  they  were  the  minority,, 
had  a  right  to  vote  for,  or  even  to  demand  the  appointment  of  that 
committee;  but  Mr.  Squier  had  no  right  to  make  any  demand 
■whatever,  because  his  name  had  not  been  enrolled,  and  therefore 
he  was  not  a  member  of  the  house,  and  had  no  right  to  speak  there. 
It  may  be  that  you  all  will  now  understand  by  what  authority  Mr. 
Squier  comes  alone.  I  can't  do  any  individual  injustice  or  wrongs 
But  there  is  no  alternative  but  this:  if  Mr.  Squier  was  entitled  to 
demand  his  seat  in  that  manner,  any  other  person  was.  And  if 
such  a  course  were  to  be  persevered  in  by  the  commissioners  from 
all  the  presbyteries  represented  in  the  General  Assembly,  it  would 
involve  the  Assembly  in  insurmountable  difficulties.  In  Congress 
there  is  no  such  practice.  There,  one  who  is  absolutely  entitled  to 
his  seat  would  not  be  allowed  to  demand  it  as  Mr.  Squier  did.  The 
first  business  is  always  the  appointtnent  of  a  committee,  to  whom 
the  subject  is  referred  ;  which  committee  must  report  immediately^ 
or  as  soon  as  practicable  after  examining  into  the  claim  of  the  indi- 
vidual. Though,  when  no  objection  is  made,  such  person  will 
take  his  seat  in  the  first  instance,  as  a  matter  of  course.  But  still 
the  question  is  open  to  investigation  in  all  cases  of  contested  elec- 
tions, because  every  man  has  a  right  to  present  his  claim  to  be 
there;  and  the  same  principle  is  incorporated  with  all  deliberative 
bodies.  In  Congress,  one-half  the  session  has  sometimes  elapsed 
before  the  question  has  been  determined,  uhich  of  two  persons  is 
entitled  to  his  seat;  and,  in  some  cases,  the  house,  not  being  able 
to  determine  the  question,  have  referred  the  whole  matter  to  the 
people,  to  decide  by  a  new  election.  You  recollect  that  this  was 
done  in  the  case  of  Moore  and  Letcher,  of  Kentucky,  a  few  years 
since,  and  also  in  a  case  from  North  Carolina  ;  and  more  recently  in 
the  case  of  the  contested  election  from  the  state  of  Mississippi,  be- 


461 

tween  Messrs.  Prentiss  and  Ward  on  the  one  side,  and  Messrs. 
Claiborne  and  his  colleague  on  the  other.  Congress  have  sent  the 
question  back  to  the  people  in  nine  cases  out  often.  We  therefore 
should  suppose  that  that  was  the  best  rule  of  action  in  such  cases. 
But  whilst  the  matter  is  under  discussion,  the  members  who  have 
an  undisputed  right,  vote  on  every  question  relative  to  the  subject. 
The  circumstance  of  the  committee  not  reporting  immediately  is 
nothing.  Such  committee  is  always  appointed  as  the  very  first 
business.  The  law  on  your  table  requires  that  the  name  of  a  mem- 
ber must  be  enrolled;  in  other  words,  that  his  right  to  a  seat  must 
be  undisputed,  before  he  can  take  his  seat  as  a  member  of  the 
house.  This  is  a  universal  principle  of  order.  Any  departure  from 
the  rule  is  a  violation  of  law.  By  what  means  shall  Congress  know 
a  man  to  be  entitled  to  his  seat,  previously  to  his  being  sworn  in  as 
a  member  of  the  house  1  Thus  the  proceedings  of  the  New  School 
party  were  revolutionary.  Dr.  Mason  trampled  on  the  rights  of 
Mr.  Joshua  Moore,  when  he  presented  commissions  which  had  been 
presented  to  the  clerks.  Nothing  had  arisen  to  justify  the  act.  He 
was  called  to  order  because  he  was  out  of  order  at  that  time,  and 
he  took  his  seat.  There  was  nothing  to  justify  this  disorder.  Dr. 
Mason  acquiesced  in  the  second  call  to  order,  when  he  appealed 
from  the  decision  of  the  moderator,  as  Dr.  Patton  had  done  in  the 
first.  The  moderator  was  merely  an  officer  of  the  house,  and  as 
such  was  bound  to  enforce  the  rules  of  order  as  far  as  it  was  in  his 
power  so  to  do.  It  was  decided  in  the  reign  of  Charles  II.  that 
before  the  speaker  was  elected,  there  was  no  house,  and  so  it  has 
been  understood  both  in  Europe  and  America  since  that  time. 
Until  a  new  moderator  was  chosen,  a  motion  on  ordinary  business 
could  not  be  put  to  the  house.  Yet  Dr.  Mason  insisted  on  making 
his  motion  a  question  of  privilege.  But  he  found  that  he  had  not 
yet  got  out  of  his  hornbook,  that  he  had  not  yet  learned  his  ABC 
in  the  process  of  parliamentary  proceedings:  and  being  thus  in- 
structed better  by  Dr.  Elliott,  he  took  his  seat.  Mr.  Squier  next 
played  his  part;  for  they  were  determined  to  turn  the  moderator 
out  of  doors  and  take  his  seat.  There  is  a  case  recorded  in  Eng- 
lish history  which  is  the  curiverse  of  this,  for  they  had  an  Elliott 
there  as  well  as  here;  but  with  this  difierence,  that  there,  when  the 
determination  was  to  put  the  speaker.  Sir  John  Elliott,  out  of  his 
chair,  Mr.  Converse  and  his  friends  kept  him  in.  Here  Mr.  Elliott 
occupied  the  chair,  and  Mr.  Converse  and  his  friends  were  endea- 
vouring to  put  him  out.  For  they  had  a  Converse  here  as  well  as 
there,  but  on  the  opposite  side  of  the  question,  "  the  very  ip-sissime,''* 
&c.  The  case  I  refer  to  is  the  case  of  the  King  versus  John  Elliott. 
This  scene  was  exactly  like  that  in  Ranstead  court,  excepting  the 
difference  between  the  keeping  the  speaker  in  the  chair  and  the 
turning  him  out ;  and  they  were  different  in  the  penalty.  Now,  will 
our  New  School  friends  escape  the  penalty  of  their  misdeeds'?  Mf. 
Cleaveland  should  undergo  a  similar  penalty.  There  is  the  san^e 
reason  why  he  should  suffer  the  penalty  in  this  case  as  there  was 
that  Mr.  Elliott  should  in  the  other.  If  Mr.  Cleaveland  and  Dr. 
Beman  had  been  subjected  to  the  same  penalty,  there   might  be 

39* 


462 

some  good  reason  wliy  they  are  not  here.  Weii,  Dr.  Elliott  re- 
plied to  Mr.  Squier,  "We  don't  know  you,  sir,"  and  much  ado  has 
been  made  about  this.  I  want  to  know  what  Dr.  Elliott  could  have 
said  more  appropriate.  If  any  thing,  it  would  have  been,  "  Take 
your  seat,  sir."  Mr.  Meredith  treated  this  matter  in  a  very  jocose 
strain,  when  he  metamorphosed  a  very  simple  intimation  into  an 
awful  denunciation,  which  he  did  by  leaving  out  the  word  "sir." 
For  Dr.  Elliott  did  not  say  to  Mr.  Squier,  "We  do  not  know  you;" 
but,  "  We  do  not  know  you,  sir."  The  expression  shows  that  Dr. 
Elliott  was  treating  him  with  the  utmost  respect.  If  he  had  intend- 
ed otherwise,  he  certainly  would  not  have  added  the  word  "sir." 
When  Mr.  Meredith  invented  this  high-wrought  hyperbole,  he  re- 
minded me  of  the  necessity  of  speaking  plain  English  in  this  coun- 
try, even  if  he  has  to  practise  on  the  maxim  "  to  talk  English  to 
every  man,  French  to  every  woman,  German  to  every  animal,  and 
Dutch — to  whom  it  may  pertain." 

But  now  to  the  gleaning  whicli  I  proposed  when  I  began.    I  have 
a  word  to  say  in  relation  to  Mr.  Cleaveland  in  this  connexion.    Mr. 
Cleaveland,  when  he  rose,  did  not  address  the  moderator  by  his 
title.     He  did  not  say  "Mr.  Moderator."     The  very  first  duty  of  a 
member  making  a  motion  is  to  address  the  moderator  by  his  title; 
and  any  man  who  should  violate  such  an  important  rule  in  the 
Senate  of  the  United  States,  or  in  the  House  of  Representatives, 
would  be  called  to  order  instantly.     The  speaker  will  not  listen  to 
any  man  who  refuses  respectfully  to  address  him  by  his  official  title, 
"  Mr.  Speaker."    I  cannot  speak  too  strongly  on  this  point.   No  man 
can  have  the  floor  except  he  thus  addresses  the  presiding  officer- 
When   the  presiding  officer  designates  the   individual  who  shall 
occupy  the  floor,  as  is  frequently  necessary  when  two  or  more 
members  rise  at  the  same  time,  he  designates  him  who  is  entitled  to 
the  floor,  in  the  same  respectful  manner,  as  "  the  gentleman  from 
Pennsylvania,"  or  "  the  gentleman  from  Virginia."    But  Mr.  Cleave- 
land did  not  face  the  moderator  of  that  Assembly,  neither  did  he 
address  him.     And  recollect,  that  is  what  would  have  entitled  him 
to  the  floor,  and  nothing  else  would  or  could.     I  do  not  now  allude 
to  the  others.     Mr.  Cleaveland  struck  the  severing  blow.     If  il  had 
not  been  for  his  conduct,  we  should  not  now  have  been  engaged  as 
■we  are  in  this  court.     He  v^'as  out  of  order.     He  never  was  on  the 
floor,  any  more  than  a  member  who  is  brought  to  the  bar  of  the 
house  bv  the  sergeant-at-arms  may  be  said  to  be  on  the  floor,  whei> 
thus  arraigned  for  contempt  of  the  house.     He  was  out  of  order, 
and  any  member  had  a  right  to  make  a  motion  to  censure  or  expel 
him.     But  at  that  time  the  whole  power  was  vested  in  Dr.  Elliott 
as  moderator,  as  fully  as  the  power  of  a  court  of  chancery  is  vested 
in  the  chancellor.     I  might,  in  support  of  this  position,  refer  to  the 
proceedings  of  every  legislative  and  judicial  body.     Again,  Mr. 
Cleaveland  introduced  the  matter  before  the  Assembly  was  fully 
organized,  and  he  turned  his  face  from  the  moderator.    He  and  his 
party  then  went  to  a  different  pari  of  the  house.     He  proposed  an 
impracticable  question.     It  was  utterly  impracticable.     Dr.  Elliott 
then  filled  the  chair,  being  in  the  place  usually  occupied  by  the 


463 

presiding  officer.  Now,  whatever  difficulties  may  occur,  there 
can't  be  two  presiding  officers  in  the  same  Assembly  at  one  and 
the  same  time,  or,  in  proposing  a  question,  the  member  proposing 
it  would  not  know  which  to  address.  Whilst,  therefore,  Dr.  Elliott 
had  the  chair,  the  question  proposed  by  Mr.  Cleaveland,  "that  Dr. 
Beman  take  the  chair,"  was  not  only  out  of  order,  but  wholly  im- 
practicable.    Take  the  chair?    Why, 

"  Is  the  chair  empty'   Is  the  king  dead"' 

If  Dr.  Beman  were  a  moderator,  there  were  of  course  two  presid- 
ing officers  in  the  same  Assembly  at  the  same  time;  a  liiing  impos- 
sible. In  no  government  can  two  heads  exist  at  the  same  time. 
The  chair  must  be  first  deserted,  or  become  vacant,  before  it  can 
be  filled.  Dr.  Beman  could  not  have  occupied  it  unless  he  had 
done  as  the  king  did,  when  he  usurped  the  speaker's  chair,  and 
propounded  such  questions  as  suited  him  to  the  House  of  Commons. 
But  in  that  case  of  usurpation,  the  members  of  the  house  refused  to 
answer,  declaring  that  ihey  could  only  speak  to  the  king  through 
their  speaker.  And  from  the  time  of  that  usurpation,  in  the  year  of 
our  Lord  1647,  down  to  1838,  the  world  never  witnessed  a  similar 
spectacle.  No  principle  of  parliamentary  law  can  be  more  fully 
and  permanently  established  than  this,  that  it  is  impossible  that  two 
individuals  can  fill  the  chair  at  ihe  same  time.  It  was  impossible 
that  Dr.  Beman  could  get  in  until  Dr.  Elliott  was  got  out.  Here  is 
an  important  link  out  of  their  chain.  For  it  is  fairly  and  fully 
proved  that  Dr.  Elliott  remained  in  the  chair.  He  must  first  have 
left  the  chair,  and  then  Dr.  Beman  must  have  taken  it  by  order  of 
the  house,  before  he  could  act  as  moderator.  Otherwise,  between 
Mr.  Cleaveland  and  Mr.  Moore  and  his  friends,  the  moderator 
might  be  put  into  a  dilemma  indeed,  and  one  as  well  as  the  other 
might  turn  him  out  for  not  attending  to  his  claims.  But  if  Mr.. 
Cleaveland  was  presiding  for  the  purpose  of  putting  in  a  new  mode- 
rator, he  was  the  president  of  a  preliminary  meeting.  But  by  rule 
twenty-fourth,  in  the  Assembly's  Digest,  there  was  no  moderator  at 
all  if  Dr.  Elliott  was  not,  for  they  must  give  notice  beforehand  of 
their  intention  to  proceed  to  the  election  of  a  moderator,  or  said 
election  would  not  be  legal.  But  what  is  of  peculiar  importance  is, 
that  there  follows,  gentlemen,  a  long  string  of  rules,  occupying  three 
pages,  every  word  and  every  letter  of  which  must  be  read  to  every 
new  moderator,  before  he  takes  his  office.  These  were  not  read 
to  Dr.  Beman  nor  to  Dr.  Fisher.  Who  ever  heard  of  such  a  mode- 
rator? To  neither  of  them  was  the  charge  contained  in  these 
rules  communicated.  Dr.  Fisher  says,  "Dr.  Beman  told  me  (just 
as  I  was  going  out  of  the  house)  that  I  was  to  he  governed  by  the 
old  rules."  But  Dr.  Fisher  was  so  ignorant  of  what  the  rules  re- 
quired, that  he  did  not  know  that  fourteen  members  made  a  quorum. 
Why  did  he  not  know?  Because  he  was  not  familiar  with  them. 
Was  it  not  infracting  the  law  to  omit  reading  the  rules  to  him, 
when,  by  his  own  confession,  he  did  not  know  them?  The  law 
requires  that  they  should  be  read  to  him,  line  upon  line.  Dr.  Fisher 
is  called  a  moderator  after  Dr.  Beman,  and  yet  not  a  word  of  the 


464 

rules,  by  which  the  moderator  was  to  be  governed,  was  ever  read  to 
him.  He  was  to  govern  himself  "  by  rules  to  be  afterwards  adopt- 
ed." There  is  a  series  of  links  necessary  to  make  the  chain  of  cir- 
cumstances; and  if  they  cannot  show  them  all,  the  whole  chain  is 
broken.  They  were  in  every  thing  wrong,  unless  they  were  right 
in  every  thing.  Whoever  doubts  this  in  point  of  fact,  should  recol- 
lect that  every  link  in  the  chain  must  be  perfect,  or  the  chain  itself 
is  imperfect.     That  is  not  a  mere  negative — it  is  an  affirmative. 

There  is  another  matter.  The  reversal  of  the  question  was  not 
a  mere  negative.  Mr.  Lowrie  has  been  acquainted  with  legislative 
proceedings  for  twenty-seven  years,  during  which  time  he  has  been 
closely  connected  with  legislative  bodies.  During  eleven  years  of 
this  time  he  was  clerk  of  the  senate  of  Pennsylvania,  and  for  six 
years  he  was  secretary  of  the  Senate  of  the  United  States,  and  he 
says  the  questions  were  not  reversed,  because  there  was  not  suffi- 
cient time  for  a  reversal.  Several  of  the  New  School  witnesses 
state  that  it  was  reversed.  But  Mr.  Lowrie  has  more  experience 
in  such  matters  than  all  of  them,  and  he  says  it  was  not,  that  there 
was  not  time.  Now  these  two  contradictions  are  not  perjury,  but 
they  most  likely  explain  the  whole  mystery.  As  if  it  was  done,  the 
reversal  was  so  nearly  in  the  same  breath  as  the  direct  question, 
that  it  was,  therefore,  not  a  legal  reversal  of  the  question.  The 
matter  is  still  further  explained  by  the  intermingling  of  the  "  Ayes" 
and  "Noes."  One  of  the  witnesses  says  that  Mr.  Cleaveland  said, 
"  in  favour  say,  '  aye,'  opposed  say  '  no.'  "  This  might  be  done  all 
in  a  breath.  Mr.  Lowrie  expressly  says  there  was  not  time  for  a 
reversal  of  the  question.  Mr.  Meredith  delivered  you  a  lecture  on 
the  efibct  of  familiar  sounds,  but  it  will  not  apply  in  this  case.  For 
all  the  members  of  the  church  were  familiar  wiih  the  tones  of  the 
human  voice;  and  as  to  the  clock,  he  may  try  it  for  a  week  if  he 
chooses,  and  the  sound  of  that  instrument  will  not  be  noticed,  whilst 
the  attention  is  wholly  engrossed  with  the  more  familiar  sounds  of 
the  human  voice,  and  the  imagination  excited  by  a  deep  interest  m 
the  subject,  which  the  tongue  of  the  orator  is  presenting  in  most 
glowing  language.  But  it  cannot  be  supposed  that  more  than  one 
half  of  the  members  of  the  General  Assembly  of  1838  were  so  well 
pleased  with  the  short  speech  and  proceedings  of  Mr.  Cleaveland, 
as  to  have  their  whole  attention  abstracted  from  every  thing  else 
of  M'hat  was  passing  around  them.  And  even  here,  though  the 
sound  of  the  clock  is  quite  familiar  to  us  all,  yet  it  would  be  quick- 
ly perceived  if  it  should  strike  thirteen  strokes  at  the  hour  of  mid- 
night. Depend  on  the  fact,  thai  no  two  persons  could  have  certain- 
ly told  exactly  how  that  question  of  reversal  was,  except  Mr. 
Cleaveland  and  Dr.  Beman-  We  do  not  know  with  certainty  that 
those  questions  were  either  put  or  reversed.  They  were  the  men 
that  could  have  told  us.  If  they  had  been  here,  or  if  their  deposi- 
tions had  been  read  in  this  court,  we  would  have  been  in  no  danger 
of  being  led  astray  on  this  point.  We  can  have  no  doubt,  whether 
the  question  was  reversed  or  not,  that  there  was  no  opportunity 
afforded  for  debate.  There  was  not  time.  Mr.  Lowrie  tells  you 
there  was  not  time.     Others  sav  there  was.     But  when  a  witness, 


465 

so  well  acquainted  with  the  order  of  deliberative  assemblies,  as  Mr. 
Lowrie,  says  there  was  not  time,  there  certainly  is  reason  to  doubt 
there  having  been  sufficient  time.  There  is  at  least  a  doubt  in  the 
case.  And  where  there  is  a  doubt,  or  where  there  was  no  oppor- 
tunity given  to  vote,  those  who  remained  silent  are  not  to  be  bound 
by  an  intendment  of  law.  They  say  that  in  1837  the  previous  ques- 
tion was  called  too  soon.  But  in  1838  the  question  on  their  mo- 
tions was  taken  instantly,  not  only  without  debate,  but  without  the  for- 
mality of  the  previous  question.  It  was  not  asked,  "Are  you  ready 
for  the  question?"  as  is  usual  when  the  members  of  the  house  indicate 
by  their  silence  or  otherwise,  whether  they  are  ready  or  not.  If 
they  thus  signify  that  they  are  ready,  the  question  is  then  put.  But 
it  would  be  folly  to  deny  that  the  Assembly  had  a  right  to  debate 
the  subject-matter  of  the  motion  previous  to  the  question  being  put,. 
It  was  a  gross  violation  of  the  rights  of  every  deliberative  body. 
If  it  is  not  a  right  inherent  in  deliberative  bodies,  then  deliberative 
bodies  must  cease  to  exist.  After  all,  gentlemen,  the  question  for 
you  to  try  is  not  whether  there  was  a  reversal  of  the  question,  in 
Doint  of  fact,  but  whether  those  who  were  to  vote  knew  it.  Did  all 
these  men,  who  would  have  voted  in  the  negative,  hear  the  rever- 
sal? That  is  the  question.  All  these  men  tell  you  that  they  did 
rot.  But  the  majority  were  not  as  well  trained  as  the  New  School 
party  were.  Every  man  of  them  called  "  aye"  at  the  very  top  of 
their  voices.  But  if  the  question  were  reversed  the  Old  School 
party  did  not  hear  it,  and  of  course  could  not  vote  in  the  negative. 
There  was  no  opportunity  given  them  to  vote  at  all.  It  may  have 
been  heard  close  by.  The  facts  are  given  by  that  venerable  old 
man.  Dr.  Hill,  who  was  near  enough  to  hear.  He  could  put  his 
hand  on  Mr.  Cleaveland's  shoulder,  and  he  tells  you  that  it  was  re- 
versed, and  there  were  noes,  and  he  was  surprised  that  they  did 
not  vole  it  down.  He  thought  they  had  not  been  well-trained.  The 
question  was  put  to  themselves,  and  the  other  party  did  not  hear  it. 
One  reason  for  not  putting  the  question  to  the  house  in  such  a 
manner  that  the  Old  School  party  could  hear  it  was,  they  did  not 
■wish  them  to  vote  understandingly  on  it.  I  have  stated  this  in  order 
to  arrive  at  a  subsequent  point  in  their  proceedings,  though  I  am 
driven  to  satiety  with  the  review  of  such  manoeuvring,  or  I  might 
have  multiplied  those  circumstances  to  an  interminable  extent, 
which  throw  this  matter  in  the  shape  of  a  doubt,  and  which  put  the 
other  question  in  its  true  light,  that  there  was  no  opportunity  to 
vote.  Of  that  there  is  no  doubt.  I  can't  bring  the  circumstances 
■which  show  this  fact  too  plainly  before  you.  In  regard  to  Dr. 
M'Dowell  not  being  called  as  a  witness,  when  it  is  said  that  he  was 
where  he  must  have  known  all  about  it,  it  is  enough  to  say  that  he 
was  not  a  member.  Every  man  of  the  Old  School  party,  who  was 
a  member,  says  that  he  did  not  know  that  Dr.  Fisher  was  appoint- 
ed moderator.  And  how  is  it  that  those  proceedings  took  place 
without  their  knowledge?  They  learned  it  by  accident,  but  knew 
it  not  by  any  observation.  I  admit  that  if  an  individual  should  stop 
his  ears  with  cotton,  or  slumber  on  his  post,  it  would  be  his  own 
fault  if  he  did  not  hear.     But  that  was  not  the  case  here.     Who  h 


,  466 

responsible  for  the  noise  1     If  you  are  satisfied  that  there  was  noise 
on  both  sides,  you  will  decide  in  favour  of  the  Old  School  party. 
Who  was  the  prinium  mobile  that  caused  it?     Why,  it  was  said,  by 
the  ring-leaders  of  a  riot  which  occurred  in  Philadelphia  sonnc 
months  since,  when  a  lawless  mob  set  the  incendiary  torch  to  one 
of  the  noblest  edifices  in  the  city,  an  edifice  which  had  recently 
been  dedicated  to  liberty  and  free  discussion,  that  the  mob  had 
"  moved  in  an  orderly  manner,"  in  the  nefarious  business  of  burning 
and  destroying  the  property  of  others,  and  that  the  owners  of  the 
properly  had  provoked  them  to  the  commission  of  the  act.     If  there 
■were  such  provocation  here,  though  it  did  not  excuse  the  one,  it  did 
not  justify  the  other.     One  principal  charge  as  an  act  of  disorder 
or  irregularity  on  the  part  of  the  Old  School  party,  is  their  repeat- 
ed calls  to  order.     This  charge  is  not  confined  to  one  member,  but 
extends  to  the  Old  School  party  generally.     We  have  also  heard  of 
coughing,  stamping  with  the  feet  and  other  noises,  and  we  are  di- 
rectly charged  with  having  made  these  strange  noises,  to  prevent 
ourselves  from  hearing.     But  those  gentlemen  in  the  immediate 
neighbourhood  did  not  hear  it.     I  will  not  charge  the  making  of  the 
noise  on  the  New  School  party,  but  I  deny  that  the  Old  School 
party  made  all  the  noise.     As  to  the  irregularity,  on  the  part  of  Mr. 
Board  man,  and  Dr.  Miller  running  across  the  house,  I  deny  it  alto- 
gether.    These  things  are  charged  on  particular  members  by  the 
New  School  party.     But  there  was  not  an  act  of  the  Old  School 
party  that  tended  to  disorder ;  not  one.     Can  we  say  so  of  the  other 
side?     Let  me  select  a  single  instance,  that  of  the  very  respectable 
Mr.  Duffield.     A  young  gentleman,  Mr.  Hamilton,  told  you  that  he 
had  seen  him  striking  on  the  seat  with  a  cane.     It  is  not  necessary 
to  repeat  the  whole  relation,  but  he  saw  that  certain  thing.     Now 
if  Mr.  Hamilton  had  been  questioned,  as  he  was  recalled  for  that 
purpose,  he  perhaps  could  have  explained  this  matter,  but  he  was 
not  called  on.     Instead  of  that  another  gentleman  was  called,  who 
stated  that  during  the  time  that  Mr.  Duffield  staid  at  his  house  he 
did  not  carry  a  cane.     There  is  no  difficulty  at  all  in  the  matter. 
Mr.  Duffield  could  easily  have  borrowed  or  seized  a  cane  for  the 
purpose  of  the  revolution.     Sufficient  has  been  elicited  to  show  that 
amongst  the  New  School  men  there  was  disorder  in  every  possible 
shape  and  form.     They  meant  to  dissolve  the  Assembly,  and  their 
proceeding  was  revolutionary.     They,  with  the  assistance  of  Mr. 
Cleaveland,  Dr.  Beman,  and  Dr.  Fisher,  organized  a  new  Assem- 
bly.   Their  proceedings  were  revolutionary,  and  from  the  necessity 
of  the  case  they  were  guilty  of  all  the  disorder.    Mr.  Duffield  voted, 
though  he  had  no  right  to  do  so.     Whether  or  not  his  was  that  most 
vociferous  "aye,"  the  sound  whereof  would  have  reached  across 
Washington  Square;  that  "  indecent"  "aye,"  as  Dr.  Hill  calls  it,  he 
was  at  any  rate  disorderly  in  voting,  as  well  as  rapping  with  a  cane; 
and  yet  we  are  charged  with  having  acted  disorderly  by  these  re- 
spectable men.     The  only  question  as  to  Mr.  Hamilton's  testimony 
is,  can  it  be  relied  on  ?  and  that  it  may,  is  rendered  certain  when 
the  counsel  on  the  other  side  did  not  impeach  his  veracity.    Though 
Mr.  Randall  intimated  something  like  a  threat  that  he  would  ques- 


467 

lion  him;  I  suppose  that,  on  reflection,  he  thought  best  to  leave  the 
matter  where  it  was.  Yes,  (on  receiving  a  suggestion  from  Mr. 
Plumer,)  Mr.  Duffield's  presence  in  the  Assembly  is  confirmed, 
there  is  no  doubt  of  it.  Yes,  and  there  were  a  great  number  stand- 
ing on  the  seats,  in  the  pews,  and  moving  up  and  down  the  aisle, 
at  the  invitation  of  the  ring-leaders  of  that  particular  Assembly 
which  was  constituted  there.  I  doubt  whether  any  Assembly  ever 
was  so  disorderly  as  this  ecclesiastical  body,  and  it  would  appear 
from  Mosheim  and  other  historians,  that  ecclesiastical  bodies  are 
very  prone  to'  disorder. 

There  is  another  important  point  to  which  I  must  call  your  spe- 
cial attention.  According  to  a  rule  agreed  to  by  the  General  As- 
sembly of  1829,  the  committee  to  review  the  commissions  which 
should  be  presented  to  them,  was  to  consist  of  the  regular  clerks. 
Now  the  Assembly  was  initiate,  ft  was  in  transition.  Who  was 
to  perform  this  oflice?  Dr.  Mason  and  Mr.  Gilbert  were  the  clerks 
of  the  pseudo  Assembly.  Did  they  inspect  the  commissions,  or  did 
those  commissions  undergo  an  actual  inspection?  Dr.  Mason  tells 
you  that  he  had  never  done  it  before  their  adjournment  to  the  First 
Church.  They  did  not  examine  them  after  they  went  to  Washing- 
ton Square,  and  therefore  the  preliminary  examination  never  took 
place  in  the  world.  Here  was  a  trampling  on  all  law  and  order. 
And  yet  this  august  Assembly,  claiming  to  be  the  highest  judicato- 
ry of  the  Presbyterian  Church,  professed  to  be  governed  by  this 
very  rule.  But  they  prescribed  for  themselves  what  course  they 
would  pursue,  whether  according  to  the  rule  or  not.  It  was  indeed 
a  most  singular  and  humiliating  spectacle  which  was  presented  to 
the  world.  Their  anger  towards  their  brethren  turns  on  their  own 
heads.  When  they  described  the  stamping  with  the  feet,  the  clap- 
ping with  the  hands,  and  the  hissing,  they  were  not  aware  that 
nothing  that  was  done  amidst  such  confusion  could  be  considered 
as  being  obligatory  on  us.  When  silent  members  are  understood 
as  acquiescing  on  the  principle  that  "  silence  gives  consent,"  they 
must  hear  and  know  what  is  proposed.  That  is  both  law  and 
order;  but  when  every  thing  is  in  disorder  and  confusion,  it  is  quite 
another  thing.  The  house  of  prayer  is  converted  into  a  den  of 
thieves,  is  desecrated  by  indecent  yells  of  "  Aye,  Aye,  Aye  !"  It  is 
necessary  to  preserve  order  in  all  deliberative  assemblies;  and  for 
this  purpose  in  all  religious,  as  well  as  civil  assemblies,  a  presiding 
officer  is  chosen,  whose  duty  it  is  to  preserve  order;  and  questions 
of  business  are  decided  by  ayes  and  noes,  the  majority  determining 
the  question  in  the  affirmative,  or  in  the  negative.  The  only  excep- 
tion to  this  general  rule  is  to  be  found  in  the  society  of  Friends, 
which  transacts  its  business  in  a  manner  essentially  different  from 
all  others.  It  is  not  analogous  to  any  other.  In  their  yearly,  quar- 
terly, and  monthly  meetings,  for  the  transaction  of  the  business  of 
their  church,  they  have  no  presiding  officer;  as  they  acknowledge 
no  head  but  Christ  Jesus,  whom  they  believe  to  be  in  the  midst  of 
them,  and  it  is  under  the  guidance  of  his  spirit  that  they  profess  to 
act  Their  church  government  is  not  a  representative  democracy 
as  that  of  the  Presbyterian  Church ;  but  it  is  a  pure  democracy, 


468 

every  member  of  the  church  having  an  equal  right  to  be  present 
and  to  be  heard  in  propria  persona.  Each  one  has  equal  privilege 
to  make  propositions  to  the  meeting,  and  the  business  of  the  clerk, 
who  is  regarded  as  a  public  servant,  is  to  form  a  minute  of  the 
transaction,  which,  when  approved  by  the  whole  body,  is  placed 
on  their  records.  They  never  decide  by  a  majority  merely,  but 
by  the  unity  or  general  consent,  and  thus  conduct  their  business  in 
a  spirit  of  brotherly  condescension  and  submission  to  each  other, 
and  in  a  most  harmonious  manner.  By  this  course  of  proceeding 
the  unbecoming  and  indecent  yell  of  "Aye,"  or  the  boisterous  and 
vociferous  "  No"  is  never  heard  amongst  them,  as  in  other  delibera- 
tive bodies. 

I  have  already  referred  to  the  authority  of  cases  reported  in 
Wendell  &  Watts,  in  support  of  my  position,  that  silence  cannot  be 
construed  into  an  assent  to  the  measures  proposed,  unless  there 
is  an  opportunity  given  to  vote  against  those  measures,  or  if  mem- 
bers are  prevented  from  hearing,  or  voting  by  force  or  fraud.  All 
law  and  order  would  be  otherwise  completely  overturned.  What 
is  done  on  similar  occasions  in  other  bodies?  Business  is  suspended 
till  the  galleries  are  cleared.  Courts  suspend  their  investigations 
till  order  is  restored,  &c.  In  our  courts  of  justice,  or  in  legislative 
bodies,  if  a  drunken  man  should  enter  the  house,  and  commence 
one  of  those  vociferations  peculiar  to  the  votaries  of  Bacchus,  all 
proceedings  must  be  immediately  suspended  until  the  cause  of  the 
disorder  should  be  removed;  and  any  question  proposed  during  the 
interim,  could  not  be  legally  acted  on ;  nor  could  the  silence  of 
members,  or  their  refusal  to  vote,  under  such  circumstances,  be 
construed  into  an  acquiescence  on  their  part.  Because  such  mo- 
tions would  be  put  in  violation  of  the  rules  of  order,  and  the  mem- 
bers acting  in  such  disorderly  manner  would  be  subject  to  punish- 
ment, by  the  body,  for  contempt.  Such  measures  either  destroy  or 
suspend  the  administration  of  justice. 

The  Old  School  party  cannot  be  accountable,  when  they  were 
prevented  by  the  prevailing  noise  and  confusion  in  the  house  at  the 
time.  The  New  School  party  prevented  the  ordinary  proceedings 
from  being  effected,  and  at  the  same  time  rendered  their  own  pro- 
ceedings ineffectual  by  the  noise  they  made.  And  this  was  a  so- 
lemn, grave,  deliberative,  religious  body.  Can  these  outrages,  so 
tumultuous,  disorderly  and  rebellious,  result  in  supplanting  us  and 
placing  them  in  power  as  the  General  Assembly?  It  is  impossible 
that  any  thing  can  be  done  effectually  in  such  a  state  of  things. 
No !  they  mistook  their  remedy.  But  why  did  they  not  try  the 
issue  in  some  other  way  than  by  a  suit  at  nisi  prius  in  this  court. 
Why  did  they  not  proceed  against  the  moderator  and  the  clerks  by 
a  mandamus,  if  it  is  not  the  property  which  they  want?  They 
might  have  consummated  their  whole  scheme,  except  the  seizing  of 
the  property  and  funds  of  the  church,  in  another  manner,  and  have 
obtained  their  seats  on  fair  and  equitable  terms.  But  let  them 
not  expect  to  triumph  in  their  present  course.  Let  them  not  ex- 
pect to  obtain  the  verdict  of  this  intelligent  jury !  No,  if  your 
verdict  shall  be  so,  if  the  plaintiffs  fail  in  this  suit,  they  can  form 
artother  Assembly  in  1839  as  they  did  in  1838,  and  without  a  repe- 


469 

tition  of  those  disorders  which  occurred  in  Ranstead  court,  and  they 
can  carry  it  on  for  ages  and  generations  without  interruption  from 
these  defendants.  They  can  become  incorporated  by  an  act  of  the 
legislature,  securing  to  them  all  such  corporate  rights  and  privileges 
as  they  may  reasonably  desire.  They  would  just  stand  where  Mr. 
Meredith  says  they  wish  to  stand,  in  the  full  exercise  and  enjoyment 
of  their  own  rights,  without  interfering  with  the  rights  of  others. 
But  on  the  other  hand,  if  your  verdict  should  be  against  these  de- 
fendants, if  you  throw  them  out  of  the  Presbyterian  Church,  they 
are  out  for  ever.  For  us  there  is  no  hope.  "The  iron"  will  have 
"'entered  into  our  souls,"  we  must  remain  on  the  outside  of  the 
sanctuary,  mourning  like  the  Israelites,  when  their  enemies  had 
-carried  them  captive.  We  will  go  away  like  Rachael  and  weep, 
we  will  sit  down  by  the  rivers  of  Babylon  and  weep,  when  we  re- 
member Zion.  We  will  be  obliged  to  hang  our  harps  upon  the  wil- 
lows in  the  midst  thereof,  whilst  "they  that  have  wasted  us  require 
of  us  mirth,  saying  unto  us,  sing  us  one  of  the  songs  of  Zion." 

ARGUMENT  OF  GEORGE  WOOD,  ESO- 

At  the  opening  of  the  Court  on  Saturday,  the  23d  of  March, 
(Mr.  Ingersoll  having  concluded  on  the  previous  evening,)  Mr. 
Wood  commenced  his  argument,  which  was  closed  on  the  follow- 
ing Monday. 

Mr.  Wood  bowed  respectfully  to  the  Court,  and  addressed  the 
jury  as  follows: — 

Gentlemen  of  the  Jury, — After  having  floated  for  several  days 
in  the  upper  regions  of  the  air,  following  the  counsel  on  the  other 
side  in  their  flights  of  fancy,  you  may  find  it  difficult  and  some- 
what painful  to  come  down  to  the  earth  again.  I  assure  you, 
iiowever,  gentlemen,  that  you  must  come  down,  if  you  go  along 
with  me ;  for  I  propose  to  continue  there.  I  am  not  used  to  being 
perpetually  on  the  wing,  and  can  only  ask  your  attention  to  a 
plain  statement  of  facts  and  argument,  condensed  as  much  as  the 
nature  of  this  complicated  case  will  admit  of.  Your  patience 
must  be  nearly  exhausted,  and  my  indisposition  renders  it  difficult 
for  me  to  proceed. 

Much,  gentlemen,  has  been  said  on  points  which  have  nothing  to 
do  with  the  case;  and  much  testimony  has  been  introduced  which 
ought  to  have  been  dispensed  with.  You  have  observed  that  the 
Old  School  party  claim  to  be  the  majority.  They  have  certainly 
examined  the  majority  of  witnesses.  We  might  have  called  hun- 
dreds. We  could  have  gone  on  without  end.  But  we  were  anxious 
to  save  time,  and  therefore,  as  you  perceived,  we  abstained  even 
from  cross-examining  their  witnesses,  that  no  waste  of  time  might 
be  made  in  this  cause  which  we  could  possibly  avoid. 

Much  has  been  said  to  you  by  the  opposite  counsel,  concerning 
the  absence  of  Dr.  Beman  and  Mr.  Cleaveland,  and  our  omittinfy  to 
read  their  depositions.  True,  their  testimony  was  not  laid  before 
you.  Neither  was  Dr.  Nott's  deposition  read  on  the  other  side. 
The  reason  is  obvious.     They  were  taken  before  it  could  be  known 

40 


470 

what  points  would  arise  in  tJie  cause,  and  they  did,  in  fact,  relate 
pritjcipally  to  points  which  have  not  proved  to  be  material.  This, 
doubtless,  was  the  reason  why  ihey  did  not  read  Dr.  Noll's  deposi- 
tion. They  offered  it,  but  the  judge  refused  to  allow  a  great  part 
of  it  to  be  read,  because  it  was  irrelative  to  the  case,  and  they  de- 
clined to  read  the  rest.  So  of  ours.  Their  depositions  related  to 
matters  which  have  turned  out  to  be  irrelative.  Dr.  Beman  is  in 
Europe,  and  Mr.  Cleaveland  is  in  the  far  west,  if  they  had  been 
here,  on  the  stand  as  Dr.  M'Dowell  was,  it  might  justly  have  been 
inferred,  from  our  not  examining  them  upon  the  organization,  as 
we  infer  from  Dr.  M'Dowell  having  been  kept  back  on  that  subject, 
that  there  was  a  renson  for  suppressing  the  testimony. 

You  have  also  been  told,  gentlemen,  that  our  opponents  have  not 
sought  litigation,  and  resorted  to  the  courts  of  law.  This  is  true  of 
them,  as  of  all  other  wrong-doers.  The  law  and  the  courts  are  no 
favourites  of  theirs.  It  is  the  injured  who  are  forced  to  go  to  law 
and  seek  for  redress.  Much  also  has  been  said  of  the  fact,  that  my 
clients  had  the  advice  of  counsel.  Is  that  strange?  Is  it  extraor- 
dinary, that  after  two  or  three  hundred  thousand  members  of  con- 
gregations had  been  cut  off  without  notice,  resort  should  be  had  to 
those  gentlemen  whose  business  it  is  to  advise  as  to  the  means  of 
redress.  Whence  could  they  seek  aid,  but  from  the  civil  tribunals 
of  the  country,  after  being  violently  shut  out  from  the  ecclesiastical 
judicatories?  There  is  nothing  in  these  suggestions,  gentlemen, 
which  ought  to  prejudice  your  minds  against  my  clients. 

Let  us,  then,  come  to  the  real  issue  in  this  case.  Was  the  Ge- 
neral Assembly  of  1838,  that  elected  these  trustees,  the  General  As- 
sembly recognized  and  contemplated  by  the  charter  of  1799 1  Who 
are  the  trustees,  is  the  actual  issue.  The  election  of  our  trustees  is 
not  disputed ;  and  we  are  brought  back  to  the  collateral  question, 
which  of  these  two  Assemblies  of  1838,  is  the  true  General  Assem- 
bly of  the  Presbyterian  Church? 

The  counsel  who  last  addressed  you  on  the  other  side,  stated  that 
he  considered  the  General  Assembly  to  be,  in  reality,  the  corpora- 
tion. In  this,  I  think  he  went  tf)0  far.  The  trustees  are  the  corpo- 
ration, under  the  act  of  '99.  They  form,  however,  a  trust  corpo- 
ration, created  for  the  General  Assembly,  and  to  act  as  their  agents, 
or  trustees.  The  General  Assembly  are  the  cestui  que  trusts;  and, 
though  not  a  corporation,  yet  they  partake  largely  of  the  corporate 
cnaracter,  under  this  charter.  They  cannot,  it  is  true,  in  a  strictly 
common  law  court,  sue  or  be  sued;  but  their  trustees,  under  the 
act  of  Pennsylvania,  hold  property  for  them  in  a  collective  capa- 
city, or,  in  other  words,  in  a  corporate  capacity,  having  succession, 
and  altogether  different  from  a  partnership  of  individuals.  In  this, 
their  corporate  and  representative  capacity,  they  are,  under  the 
charter,  to  receive  from  their  trustees  their  funds,  and  to  dispense 
them.  In  their  collective,  or  corporate  capacity,  they  are  to  feed 
or  supply  the  corporation  with  its  membership.  They  are  to  elect 
the  trustees.  They  are  a  body  corporate,  in  their  organization  and 
modes  of  proceeding,  and  for  all  the  purposes  of  judicial  and  legis- 
lative action,  and  of  administrative  proceedings,  to  the  extent  of 


471 

their  powers  in  these  departments.  What  is  the  inference  to  be 
drawn  from  this?  They  are  subject  to  that  judicial  control,  and 
to  those  wholesome  regulations  which  the  court  of  king's  bench,  in 
England,  and  the  supreme  court  of  this  state  exercises  and  enf()rces 
over  ihe  subordinate  institutions  of  the  country.  I  admit  that  a 
common  law  court  has  no  direct  jurisdiction,  by  way  of  appeal  or 
review,  over  the  action  of  a  mere  ecclesiastical  judicatory ;  but  it 
has  a  right  to  inquire,  and  will  inquire  into  the  conduct  and  organi- 
zation of  a  collective  body,  whether  ecclesiastical  or  otherwise,  in- 
timately connected  by  the  charter  with  a  corporation,  so  far  as 
may  be  necessary  to  settle  a  question  of  property  or  civil  rights,  and 
more  especially  of  the  right  of  membership  in  such  corporation. 
The  court  will  take  care  that  such  bodies  do  not  violate  any  of 
those  fundamental  rules  of  policy  or  justice,  which  ought  to  be  ob- 
served by  all  bodies,  in  the  transaction  of  their  affairs. 

There  is  another  point  of  view  in  which  this  subject  may  be  con- 
sidered. The  General  Assembly  is  subject  to  the  law  of  public 
trusts,  or  charitable  uses,  as  it  is  more  generally  termed,  which  was 
early  introduced  into  Pennsylvania,  as  appears  from  the  case  of  Wit- 
man  and  Lex,  decided  in  this  court,  and  in  the  case  of  Sarah  Zanes* 
will,  in  the  United  States  circuit  court  for  this  district.  Under  this 
law,  this  ecclesiastical  institution  would  be  subject  to  the  jurisdic- 
tion of  the  chancery  of  England,  in  respect  to  property,  by  direct 
review  and  control,  and  the  powers  of  that  court  in  this  state,  must, 
to  a  certain  extent,  devolve  upon  this  court.  Under  the  law  of 
public  trusts,  voluntary  institutions  established  for  the  promotion  of 
piety  and  charity,  are  recognized  as  acting  in  a  corporate  capacity, 
and  their  rights  are  protected  through  the  attorney  general.  In 
the  case  of  Moggridge  vs.  Thackwell,  in  7  Vezey's  Reports,  seve- 
ral of  these  voluntary  societies  were  selected  as  managers  of  the 
charity. 

In  order  to  find  out  the  true  legitimate  character  of  this  ecclesi- 
astical asseiTibly  and  its  subordinate  institutions,  as  recognized  and 
contemplated  by  the  legislature  of  Pennsylvania,  in  creating  this 
corporation,  it  will  be  necessary  to  look  at  the  composition  of  this 
General  Assembly  at  the  time  the  act  was  passed.  These  gentle- 
men tell  us,  it  was,  and  ought  to  be  a  pure,  unadulterated  Presby- 
terian Church,  of  no  mongrel  character,  not  to  be  polluted  by  an  in- 
termixture with  Congregationalism.  Now,  when  the  charter  was 
granted  by  the  legislature,  this  Presbyterian  body  was  in  the  closest 
connexion  with  Congregationalists.  By  referring  to  page  296  of 
the  Asseinbly's  Digest,  it  appears  thai  several  years  prior  to  this 
act  of  incorporation,  a  proposition  was  made  by  the  General  As- 
sembly, and  received  and  adopted  by  the  .Association  of  Connecti- 
cut, that  delegates  from  the  one  body  to  the  other,  should  deliberate 
and  vote  as  members.  What,  then,  was  the  character  of  the  Ge- 
neral Assembly  in  1799,  when  this  act  of  incorporation  was  passed  ? 
It  was  then  in  perfect  accordance  with  its  doctrines  and  discipline, 
or,  if  you  please,  with  its  ordinances  of  divine  right,  not  merely  to 
correspond  with  Congregationalists,  but  to  allow  them  to  sit  and 
vote  in  this  very  General  Assembly,  the  highest  body  known  to 


472 

their  church.  It  remained  for  the  pure  of  1837  to  discover  that 
such  alhances  were  mongrel  and  bat-like,  and  not  to  be  tolerated. 
Our  inquiry  now  is,  to  ascertain  what  may  be  the  composition  of 
this  General  Assembly,  in  voting  for  trustees  under  this  charter; 
and,  surely  I  need  not  stop  to  say,  that  its  character  and  its  usage 
at  the  time  the  act  of  incorporation  passed,  must  settle  this  question. 
I  am  clearly  warranted,  then,  in  saying  that  it  does  not  destroy 
the  Presbyterian  character  of  this  body,  or  affect  the  corporation, 
to  make  alliances  with  Congregationalists,  and  even  to  allow  them 
to  vote  in  the  judicatories  of  the  church.  The  counsel,  (Mr.  Inger- 
soll,)  has  stated  to  you,  that  in  England  a  union  once  existed  be- 
tween these  two  religious  sects.  He  might  have  gone  further,  and 
told  you  that  such  a  union  existed  at  the  very  time  that  Presbyte- 
rianism  was  introduced  from  thence  into  this  country.  It  must  be 
borne  in  mind,  that  it  was  introduced  here  from  England,  and  not 
from  Scotland.  I  think,  then,  I  am  warranted  in  saying,  that  con- 
nexions of  this  kind  are  consonant  to  the  principles  and  spirit  of 
Presbyterianism.  And,  gentlemen,  this  enlightened  and  liberal  tole- 
ration should  be  admired,  not  declaimed  against.  It  is  in  perfect 
keeping  with  the  genius  of  all  our  American  institutions. 

The  opposite  counsel  have,  at  every  turn  of  their  argument,  given 
us  oyer  and  view  of  the  worthy  and  reverend  Dr.  Green,  not  to  en- 
lighten your  judgments,  but  to  excite  your  sympathies.  No  one 
can  feel  more  respect  for  him  than  I  do,  but  I  should  indulge  in  a 
mawkish  and  crocodile  sensibility,  were  I  to  lament  his  being  strip- 
ped of  an  office  which  yields  no  emolument,  and  under  circum- 
stances which  every  one  knows  cannot  affect  his  character.  It 
would  be  kindness,  and  not  injury  to  him,  to  relieve  him,  in  his  old 
age,  fronfi  the  care  of  the  temporalities  of  the  church,  which  might 
better  be  under  the  control  of  younger  men. 

The  General  Assembly,  or  body  purporting  to  be  such,  which 
elected  these  trustees  in  May,  1838,  was  first  organized.  If  it  was 
well  organized,  it  must  prevail,  and  no  subsequent  organization  can 
be  good.  On  the  contrary,  it  was  the  duty  of  all  to  come  in  and 
join  it,  or  else  there  might  be  as  many  Assemblies  sitting  at  the 
same  time,  as  there  were  quorums.  There  cannot,  certainly,  be 
two  true  and  valid  General  Assemblies,  silting  at  the  same  lime. 
Petty  irregularities  in  the  process  of  organization,  will  not  vitiate. 

Gentlemen,  in  all  controversies  of  this  sort,  it  is  important  to  find 
out  how  far  the  parties  differ,  and  where  they  agree.  Both  parties 
concur  in  saying  that  the  General  Assembly  of  1838,  was  going  on 
in  the  process  of  organization,  up  to  the  time  of  the  motion  of  Mr. 
Cleaveland.  There  are  irregularities  alleged  on  both  sides,  but  on 
different  grounds.  We  say  that  their  organization  was  defective 
and  unlawful,  and  we  were  attempting  to  cure  those  defects.  They 
say  that  our  attempts  were  irregular.  They  charge  us  with  pro- 
ducing and  organizing  a  secession.  We  deny  it,  and  allege  that 
we  only  displaced  officers  who  refused  to  do  their  duty,  as  is  often 
done  in  every  assembly,  and  that  we  then  proceeded  on  in  the  regu- 
lar organization  of  the  General  Assembly.     This  brings  me  to  con- 


473 

sider  the  character  of  Mr.  Cleaveland's  motion,  and  the  causes 
which  !ed  to  it. 

There  was,  gentlemen,  a  dehberate  attempt  to  form  an  unlawful 
General  Assembly  of  the  Presbyterian  Church,  concocted  by  the 
moderator  and  clerks,  and  a  clique  of  the  Old  School  delegates, 
commencing  in  1837,  and  continuing  up  to  the  time  of  Mr.  Cleave- 
land's motion.  On  these  attempts,  and  the  proceedings  connected 
with  them,  we  found  our  right  to  remove  these  officers.  I  must  be 
allowed  to  claim  your  attention  to  the  details  of  this  plan.  Let  us 
go  back,  then,  to  1837,  to  the  excinding  acts,  first  in  importance,  as 
they  are  first  in  time.  These  are  what  the  gentlemen  say  have 
nothing  to  do  with  the  case:  "mere  portico-work,"  they  called 
them.  Cutting  off"  six  hundred  ministers,  fifty  thousand  communi- 
cants, and  more  than  two  hundred  thousand  members  of  congrega- 
tions, without  accusation,  or  notice,  or  trial,  is  mere  portico-work, 
is  it?  What,  then,  is  the  temple  which  they  have  put  behind  this 
portico?  Their  petty  points  of  order ! !  Whether  the  moderator 
stood,  or  had  a  chair,  was  in  a  pew,  or  in  the  aisle,  with  a  hammer 
in  his  hand,  or  without  one.  Whether  a  motion  was  made  on  this 
side  of  the  house,  or  that  side  of  the  house.  These  are  the  great 
and  interesting  topics  which  ought  to  occupy  our  time  and  agitate 
the  breasts  of  the  court  and  jury;  while  cutting  off"  all,  old  and 
young,  in  large  districts  of  country,  is  portico-work  ! 

I  now  propose  to  show,  that  these  excinding  acts  of  1837,  did 
not,  in  law  and  justice,  exclude  any  one  from  the  church  ;  that  they 
are  void  and  of  no  effect;  that  there  was  an  attempt  to  carry  out 
these  acts  in  the  organization  of  1838,  and  to  perpetuate  the  exclu- 
sion which  they  purport  to  decree ;  that  such  an  attempt  was 
fraudulent  and  unlawful,  and  void;  that  no  lawful  Assembly  could 
have  been  organized  in  conformity  with  it;  that  it  ought  to  have 
been  resisted  by  all  fair  means,  and  that  the  means  resorted  to, 
were  perfectly  lawful  and  proper. 

These  excinding  resolutions,  gentlemen,  I  need  not  read  again. 
Their  intended  effect  was  to  cut  off"  a  large  part  of  the  state  of  New 
York,  and  a  large  portion  of  the  state  of  Ohio.  Now  what  is  this 
charier  of  incorporation?  Is  it  confined,  in  its  benefits,  to  Penn- 
sylvania? Does  it  extend  only  "from  Pennsylvania  to  the  Missis- 
sippi?" No:  it  is  a  charter  for  the  Presbyterian  Church  of  the 
United  States  of  America.  It  is  an  expansive  charter  for  the  whole 
Union,  as  broad  and  expansive  as  our  whole  country. 

And  how  were  these  people  to  be  cut  off"?  At  one  blow !  No 
trial,  no  summons,  no  opportunity  to  be  heard !  The  commission- 
ers to  the  Assembly  came  together  with  no  such  powers;  yet  they 
attempted  to  cut  off",  at  one  fell  swoop,  all  their  brethren  who  re- 
sided in  the  infected  district.  What  would  be  the  efl^ect  of  this,  if  it 
should  prevail?  To  banish  Presbyterianism  from  those  large  por- 
tions of  countr^^  Look  at  the  map.  See  what  a  region  has  been 
declared  to  be  infected,  tabooed  ground.  In  New  York,  it  is  more 
than  three  hundred  miles  in  length,  and  of  the  width  of  all  the 
northern  part  of  the  state.  In  Ohio,  it  is  a  large  territory.  It  is,  in 
all,  equal  to  some  four  or  five  of  the  smaller  states  of  our  Union. 

40* 


474 

Every  man  in  these  regions  was,  by  these  acts,  deprived  of  all  his 
rights  under  this  charier.  These  immense  districts  were  made,  so 
far  as  Presbyterianism  was  concerned,  a  desert,  without  an  oasis  to 
dehght  the  eye;  for  all  the  purposes  of  Presbyterianism,  dreary, 
and  waste,  and  void. 

But  let  us  look,  gentlemen,  at  the  qualifications  which  are  alleged 
to  mitigate  the  severity  of  these  resolutions. 

"  2.  That  the  solicitude  of  this  Assembly  on  the  whole  subject, 
and  its  urgency  for  the  immediate  decision  of  it,  are  greatly  in- 
creased by  reason  of  the  gross  disorders  which  are  ascertained  to 
have  prevailed  in  those  synods,  (as  well  as  that  of  the  Western  Re- 
serve, against  which  a  declarative  resolution,  similar  to  the  first  of 
these,  has  been  passed  during  our  present  sessions,)  it  being  made 
clear  to  us,  that  even  the  Plan  of  Union  itself  was  never  consist- 
ently carried  into  eflect  by  those  professing  to  act  under  it." 

They  say  in  this  resolution,  that  the  plan  itself  was  never  con- 
sistently carried  into  effect.  Why  not,  then,  rectify  its  irregulari- 
ties? Or,  if  they  must  cut  off,  why  not  confine  it  to  the  mixed 
churches,  or  Congregational  churches  alleged  to  be  formed  under 
the  plan?  Why  cut  off  the  whole  church  in  those  districts?  The 
resolutions  do  not  even  tell  us  what  these  irregularities  were, 
though  they  say  the  disorders  were  ascertained.  How  were  they 
ascertained?  By  trial,  or  notice?  Had  the  accused  a  chance  to 
meet  the  charges  and  disprove  them?  No.  They  tell  us  also,  in 
the  third  resolution,  that  these  resolutions  are  not  to  affect  the  minis- 
terial standing,  or  pastoral  relations  of  the  ministers.  Gentlemen, 
is  not  this  mockery?  What  is  meant  by  ministerial  standing?  And 
what  is  pastoral  relation?  Is  it  not  a  standing  in  all  these  judica- 
tories? the  highest,  as  well  as  the  lowest?  Does  it  not  include  the 
right  of  trial  and  complaint?  Of  ecclesiastical  justice?  Of  secu- 
rit\'  under  the  charter?    And  are  they  not  cut  off  from  all  these? 

You  are,  however,  told  that  Pennsylvania  was  not  cut  off!  I 
cannot  believe  that  this  remark  was  intended  to  enlist  your  preju- 
dices and  excite  sectional  jealousy.  It  would  be  unworthy  of  the 
high  standing  of  the  honourable  gentleman;  and  you  will  not  be 
willing  to  proclaim  to  the  world,  that  you  decide  this  cause  upon 
such  considerations.  You,  too,  will  see,  if  you  carry  out  these  ex- 
cinding  resolutions,  that  your  turn  will  come  next.  Philadelphia, 
or  all  Eastern  Pennsylvania,  may  be  the  next  victim.  The  Old 
School  party  have  some  grounds  of  dissension  reinaining  among 
them,  still.  Dr.  Green  himself  may  be  excluded  next,  unless  the 
honourable  gentleman,  who  seems  determined  that  nobody  shall 
have  the  worthy  Doctor,  should  take  him  under  his  immediate  care. 
He  may  bear  him  away  in  his  bosom,  from  the  newly  infected  dis- 
trict to  South  Carolina,  where,  if  he  cannot  have  the  right  to  ex- 
cind,  they  must  at  least  allow  him  the  privilege  of  nullifying. 

But  we  are  told  that  these  resolutions  provide  a  mode  for  true 
Presbyterians  to  get  back  again  into  the  church. 

"  4.  That  inasmuch  as  there  are  reported  to  be  several  churches 
and  ministers,  if  not  one  or  two  presbyteries,  now  in  connexion  with 


475 

one  or  more  of  said  synods,  which  are  strictly  Presbyterian  in  doc- 
trine and  order,  be  it,  therefore,  further  resolved,  that  all  such 
churclies  and  niinisiers  as  wish  to  unite  with  us,  are  hereby  direct- 
ed to  apply  for  admission  into  those  presbyteries  belonging  to  our 
connexion  which  are  most  convenient  to  their  respective  locations; 
and  that  any  such  presbytery  as  aforesaid,  being  strictly  Presbyte- 
rian in  docirine  and  order,  and  now  in  connexion  with  either  of 
said  synods,  as  may  desire  to  unite  with  us,  are  hereby  directed  to 
make  application,  with  a  full  statement  of  their  cases,  to  the  next 
General  Assembly,  which  will  take  proper  order  thereon." 

That  is  to  say,  any  one  that  chooses,  may  apply  to  an  adjoining 
presbytery,  of  course  f)ui  of  the  infected  region,  as  all  the  presby- 
teries therein  are  cut  off.  This  scheme  was  evidently  devised,  in 
order  that  no  man,  thus  cut  oft*,  should  get  back  into  the  Presbyte- 
rian Church,  without  the  permission  of  the  General  Assembly.  No 
commissioners  from  the  excinded  districts,  were  to  be  enrolled  and. 
admitted  in  the  usual  way,  into  the  General  Assembly.  Thus  the 
matter  would  be  entirely  under  the  control  of  the  Old  School  party. 
The  excinded  are  out  of  the  church.  If  they  will  get  back,  they 
must  come  like  strangers,  to  "  unite  with  us."  Look  at  the  same 
minutes  of  1837,  and  see  how  they  were  to  be  kept  out. 

"  The  report  of  the  committee  on  the  right  of  presbyteries  to  exa- 
mine ministers  applying  for  admission,  which  was  adopted  this 
morning,  was  reconsidered,  amended,  and  adopted  as  follows,  viz. 

"That  the  constitutional  right  of  every  presbytery  to  examine  all 
seeking  connexion  with  them,  was  settled  by  the  Assembly  of  1835, 
(see  minutes  of  1835,  p.  27.)  And  this  Assembly  now  render  it  im- 
perative on  presbyteries  to  examine  all  who  make  application  for 
admission  into  their  bodies,  at  least  on  experimental  religion,  di- 
dactic and  polemic  theology,  and  church  government." 

They  make  it  imperative  on  the  presbyteries  to  examine  all  who 
would  apply  for  admission  on  experimental  religion  and  theology. 
Take  the  case  of  Dr.  Richards.  I  take  his  case,  because  I  have 
long  known  his  high  standing  in  the  church.  He  has  lived  in  the 
enjoyment  of  all  the  religious  rites  of  this  church,  till  the  decline  of 
life.  Then  he  is  tabooed,  cut  off",  because  he  is  in  the  ill-fated  dis- 
trict; and,  to  be  restored  to  his  religious  privileges,  he  must  travel 
three  hundred  miles,  get  out  of  that  district,  apply  to  a  presbytery, 
and  be  examined  on  experimental  religion  and  theology.  Men  as 
good  as  Dr.  Green,  or  any  of  them,  must 'travel,  beg  for  admission, 
and  be  examined  on  experimental  religion  by  those  who  have  thus 
cut  them  off".  And  these  excinded  presbyteries,  can  they  send  com- 
missioners to  the  General  Assembly,  in  the  usual  way?  Oh  no. 
They  must  apply  to  presbyteries  out  of  the  district,  and  through 
them,  to  the  General  Assembly;  where  their  cases  will  be  consider- 
ed, after  the  Assembly  shall  he  organized  without  them;  when  the 
same  men  who  cut  them  off",  must  pass  on  their  cases. 

As  judicial  acts,  these  resolutions  will  not  bear  examination  for 
a  moment,  as  I  trust,  I  shall  satisfy  you.  I  shall  not  only  use,  for 
this  purpose,  the  law  of  the  land,  but  shall  refer  to  their  own  books, 


476 

to  rules  and  principles  established  in  this  church,  before  these  men 
began  their  career.     Look  at  their  Digest,  page  323. 

"  Sect.  5.  No  person  to  be  condemned  without  due  notice  of  tlie  accusation 
against  him. 

"  It  was  resolved,  as  the  sen.se  ol'  this  house,  that  no  man  or  body 
of  men,  agreeably  to  the  constitution  of  this  church,  ought  to  be  con- 
demned or  censured,  without  having  notice  of  the  accusation  against 
him  or  them,  and  notice  given  for  trial.  Vol.  I.  p.  77.  1793." 

This,  gentlemen,  is  not  only  Presbyterian  law,  but  it  is  justice, 
and  it  conformeth  to  the  law  of  the  land.  The  true  doctrine  is  laid 
down  in  "Angel  and  Ames,  on  Corporations,"  page  244. 

"  In  none  of  the  above  cases,  wherein  it  is  considered  that  there 
is  just  and  sufficient  cause  for  amotion,  can  the  party  be  expelled, 
unless  he  has  been  duly  notified  to  appear.  And  where  a  corpora- 
tion strikes  oft*  one  of  its  members,  without  giving  previous  notice, 
and  affording  an  opportunity  to  be  heard,  a  mandamus  to  restore 
him  will  be  granted.  J.  H.,  a  member  of  the  Pennsylvania  Bene- 
ficial institution,  having  been  expelled  from  the  society,  and  having 
applied  to  the  Supreme  court  for  a  mandamus  to  restore  him,  the 
officers  of  the  corporation  made  a  return,  showing  cause  why  the 
said  J.  H.  should  not  be  restored  to  the  rights  of  a  member.  It 
appeared  by  the  return,  that,  by  the  articles  of  incorporation,  each 
member  was  to  pay  fifty  cents  in  specie,  a  monthly  contribution, 
and  that  should  any  member  neglect  to  pay  his  contribution  for 
three  months,  he  was  to  be  expelled.  J.  H.,  it  was  stated,  was  three 
months  in  arrear,  as  was  reported  by  a  committee  appointed  for 
the  purpose  of  making  inquiry  on  that  subject,  whereupon  he,  to- 
gether with  others  who  were  found  to  be  in  the  like  situation,  were 
struck  off  the  roll,  as  having  forfeited  their  rights  of  membership 
in  the  society.  There  was  no  vote  of  expulsion,  because  in  the 
opinion  of  the  officers  who  made  the  return  to  the  mandamus,  the 
nonpayment  of  contributions  for  three  months,  was,  i-pso  facto,  a 
forfeiture  of  membership.  But  the  Court  were  clear,  that  there 
"must  be  some  act  of  the  society,  declaring  the  expulsion;  and  that 
this  could  not  be  done  without  a  vote  of  expulsion,  after  notice  to 
the  member  supposed  to  be  in  default.  For  it  was  possible,  that  the 
member  might  either  prove,  that  he  was  not  in  arrears,  or  give  such 
reason  for  his  default  as  the  society  might  think  sufficient.  And  the 
notice  must  be  served  upon  the  accused  a  reasonable  time  before 
the  amotion ;  and  when  an  amotion  is  shown,  the  notice  must  be 
particularly  averred,  and  positively;  if  it  be  under  a  recital,  as  licet 
summunitus  fuit,  it  is  insufficient." 

There  was  no  notice,  no  trial  or  specific  action  whatever,  and 
these  mere  delegates  expelled,  not  only  members  of  the  Assembly, 
but  all  the  churches,  all  the  people  of  that  sect,  all  the  judicatories 
in  a  tract  of  country  three  hundred  miles  in  length  in  New  York, 
and  an  extensive  portion  of  Ohio.       # 

We  are  told  that  it  is  the  practice  to  dissolve  synods  and  other 
inferior  judicatories  as  occasion  may  require.     They  do  so,  and 


477 

there  is  authority  in  the  book  for  it;  but  when  they  dissolve  a  judi- 
catory, they  attach  the  parts  of  which  it  is  composed  to  another,  and 
no  member  is  thereby  put  oui  of  the  church.  How  different  this 
from  excision,  from  cutting  them  off,  declaring  them  out  of  the 
church,  and  depriving  them  of  ail  their  religious  privileges.  Why, 
look  at  the  cases  cited  on  the  other  side.  The  Synod  of  Delaware 
was  dissolved  in  1835,  but  its  presbyteries  were  at  the  same  time 
attached  to  other  synods.  So  of  the  Synod  of  the  Chesapeake  in 
1834.  No  one  was  disowned  or  cut  off.  It  was  a  mere  change  of 
the  local  connexion.  The  Synod  of  Chesapeake  was  dissolved,  and 
its  presbyteries  attached  to  other  synods.  In  these  cases  merely 
the  judicatory  was  dissolved.  The  word  synod  is  used  in  a  double 
sense.  In  these  excinding  resolutions,  the  entire  district,  and  all 
the  members  hving  in  the  district  over  which  the  jurisdiction  of 
the  synod  extends,  are  cut  off  from  all  connexion  with  the  church  ; 
and  if  any  of  them  wish  readmission,  they  must  apply  anew  as 
strangers,  and  go  out  of  the  infected  and  condemned  district  for 
the  purpose.  They  are  declared  to  be  "  out  of  the  ecclesiastical  con- 
nexion of  the  Presbyterian  Church"  &c.  How  frivolous  and  un- 
founded and  false  is  it  to  attempt  to  justify  these  excinding  resolu- 
tions, by  resorting  to  the  practice  of  dissolving  a  church  judicatory. 
It  can  only  impose  upon  a  superficial  intellect. 

We  are  told,  however,  that  these  excinding  resolutions  were 
legislative  measures,  and  that  these  proceedings  are  justified  as 
legislative  acts.  They  tell  us,  in  the  first  place,  that  these  legisla- 
tive proceedings  were  justified  by  the  abrogation  of  the  Plan  of 
Union  ;  under  which,  as  they  say,  the  districts  composing  these 
synods  grew  up;  and,  secondly,  they  were  authorized  by  the  legis- 
lative power  of  the  body,  independently  of  the  abrogation  of  that 
plan. 

Let  us,  in  the  first  place,  look  at  this  Plan  of  Union,  which  is 
charged  as  being  so  infectious  as  to  require  the  purging  away  of 
every  thing  connected  with  it.  It  was  nothing  more  nor  less  than 
an  alliance  with  Congregationalism  to  promote  union  and  harmony, 
not  a  whit  closer  or  stronger  than  the  plan  of  1799,  to  which  I 
have  already  called  your  attention.  That  union  allowed  the  dele- 
gates from  the  allied  bodies,  not  only  to  sit  and  deliberate,  but  to 
vote  as  members,  and  was  in  full  force  vihen  this  act  of  incorporation 
passed.  The  Plan  of  Union  originated  in  a  proposition  of  the  Gene- 
ral Assembly.  These  alliances  have  been  approved  of  by  Dr. 
Green  himself;  and  not  only  by  him,  but  by  all  the  great  men  of 
the  church  in  those  days.  Dr.  Latta,  Dr.  Alexander,  Dr.  M'Knight, 
and  others;  and  at  the  head  of  the  list,  let  me  name  Dr.  John 
Witherspoon,  a  man  never  to  be  forgotten  while  our  nation  stands. 
He  was  much  more  than  a  mere  closet  metaphysician ;  he  was  a 
statesman,  a  divine,  a  patriot,  and  in  every  aspect  a  practical  man, 
of  enlarged  and  liberal  views.  Through  the  whole  period  of  our 
Revolution,  he  had  seen  the  advantages  of  union  and  harmony,  and 
had  always  promoted  them.  As  a  statesman,  he  saw  that  union 
was  indipensible  to  our  institutions;  as  a  statesman  and  a  Christian, 
he  saw  and  felt  that  these  plans  of  union  among  religious  sects 


478 

would  be,  in  the  hands  of  the  pious  and  the  good,  a  power,  like  the 
lever  of  Archimedes,  to  raise  up  a  moral  and  religious  world. 

But  we  are  told  that  this  Plan  of  Union  brings  Congregationalists 
into  the  body  of  the  Presbyterian  Church.  Let  us  look  at  it,  and 
see  to  what  extent  this  charge  is  true. 

"  Reg'ulations  adopted  by  the  General  Assembly  of  the  Presbyterian  Church  in 
America,  and  by  tlie  General  Association  of  the  state  of  Connecticut,  (provided 
said  Association  agree  to  them,)  with  a  view  to  prevent  alienation  and  promote 
union  and  harmony,  in  those  new  settlements  which  are  composed  of  inliabitants 
from  these  bodies. 

"  1st.  It  is  Strictly  enjoined  on  all  their  missionaries  to  the  new 
settlements,  to  endeavour,  by  all  proper  means,  to  promote  mutual 
forbearance  and  accommodation,  between  those  inhabitants  of  the 
new  settlements,  who  hold  the  Presbyterian  and  those  who  hold  the 
Congregational  form  of  church  government. 

"2d.  If,  in  the  new  settlements,  any  church  of  the  Congrega- 
tional order  shall  settle  a  minister  of  the  Presbyterian  order,  that 
church  may,  if  they  choose,  still  conduct  their  discipline  according 
to  Congregational  principles,  settling  their  difficulties  among  them- 
selves, or  by  a  council  mutually  agreed  upon  for  that  purpose:  but 
if  any  difficulty  shall  exist  between  the  minister  and  the  church,  or 
any  member  of  it,  it  shall  be  referred  to  the  presliytery  to  which 
the  minister  shall  belong,  provided  both  parties  agree  to  it;  if  not, 
to  a  council  consisting  of  an  equal  number  of  Presbyterians  and 
Congregationalists,  agreed  upon  by  both  parties." 

You  see,  gentlemen,  that  these  two  provisions  do  not  bring  a 
single  Congregational  minister  into  the  body  of  the  Presbyterian 
Church.  The  Congregational  minister  does  not  enter  into  any 
Presbyterian  judicatory.  He  may  be  stationed  in  one  of  their  con- 
gregations. This  was  always  so :  it  is  done  every  day  in  the  Pres- 
byterian Church.  They  now  send  their  missionaries,  where?  To 
the  pagan  and  infidel;  to  the  heathen  to  convert  them;  and  they 
do  not  wait  for  elders.  They  cannot  find  them  there  ready-made; 
they  must  convert  them  first.  And  have  they  got  to  this  pass  of 
religious  spite  and  intolerance,  that  while  they  allow  their  ministers 
to  preach  to  the  heathen  and  the  infidel,  they  will  not  permit  them 
to  address  Congregationalists,  of  the  same  faith  with  themselves, 
under  a  plan  formed  by  the  great  patriarchs  of  their  church? 

There  is  only  one  other  feature  of  this  plan  to  be  noticed,  and 
that  is,  the  provision  as  to  mixed  churches.  The  diffiirence  between 
this  article  and  the  others,  is  the  difference  between  tvveedle-dum 
and  tweedle-dee,  to  any  one  of  enlarged  and  liberal  views,  out  of 
the  closet  of  metaphysics. 

"  4th.  If  any  congregation  consist  partly  of  those  who  hold  the 
Congregational  form  of  discipline,  and  partly  of  those  who  hold 
the  Presbyterian  form;  we  recommend  to  both  parties,  that  this  be 
no  obstruction  to  their  uniting  in  one  church  and  settling  a  minis- 
ter: and  that  in  this  case,  the  church  choose  n  standing  committee 
from  the  communicants  of  said  church,  whose  business  it  shall  be, 
to  call  to  account  every  member  of  the  church,  who  shall  conduct 


479 

himself  inconsistently  with  the  laws  of  Christianity,  and  to  give 
judgment  on  such  conduct:  and  if  the  person  condemned  by  their 
judgment  be  a  Presbyterian,  he  shall  have  liberty  to  appeal  to 
the  presbytery;  if  a  Congregationalist,  he  shall  have  liberty  to 
appeal  to  the  body  of  the  male  communicants  of  the  church:  in 
the  former  case  the  determination  of  the  presbytery  shall  be  final, 
unless  the  church  consent  to  a  lurther  appeal  to  the  synod,  or  to 
the  General  Assembly ;  and  in  the  latter  case,  if  the  party  con- 
demned shall  wish  for  a  trial  by  a  mutual  council,  the  cause 
shall  be  referred  to  such  council;  and  provided  the  said  standing 
committee  of  any  church,  shall  depute  one  of  themselves  to  attend 
the  presbytery,  he  may  have  the  same  right  to  sit  and  act  in  the 
presbytery,  as  a  ruling  elder  of  the  Presbyterian  Church." 

The  only  shadow  of  pretence  for  the  accusaiion  of  its  intro- 
ducing Congregationalists  into  the  church,  is  in  the  provision  that 
a  committee-man  may  sit  and  act  in  the  presbytery ;  and  can  it  be 
seriously  pretended  that  this  is  a  warrant  for  destroying  and  cutting 
off  this  large  branch  of  the  church?  Suppose  committee-men  (Con- 
gregationatists)  should  come  into  the  presbytery  in  this  way.  Is  it 
not  of  the  same  character  with  the  Union  existing  in  '99,  at  the 
date  of  the  charter,  by  which  Congregationalists  from  the  Associa- 
tion of  Connecticut  sal  and  voted  in  the  General  Assembly  itself? 
Why,  gentlemen,  they  have  become  wise  too  late.  Men  were  as 
wise  in  1799  and  1801,  when  this  plan  was  adopted,  as  they  are 
now.  Dr.  Green  was  as  wise,  and  much  more  liberal  then,  when 
he  approved  this  plan,  than  now,  when  he  condemns  it.  This  wis- 
dom has  come  upon  them  too  suddenly.  It  is  discovered  only 
thirty-six  years  after  the  plan  has  been  in  full  operation.  It  darts 
upon  them  like  lightning,  like  the  flashes  of  wit  and  genius  which  have 
burst  from  their  learned  counsel.  If  the  introduction  of  a  Congre- 
gational committee-man  had  become  all  at  once  a  serious  objec- 
tion, might  they  not,  in  a  more  Christian-like  manner,  have  obviated 
the  difficulty,  than  to  engage  in  this  work  of  revolutionary  desola- 
tion? They  had  only  to  declare,  that  the  delegate  to  presbytery 
from  a  mixed  church,  should  be  a  Presbyterian,  an  ordained  elder, 
and  the  whole  difficulty  would  have  vanished.  But  this  was  a  mere 
pretence  to  veil  over  their  covert  designs. 

But,  say  they,  the  Plan  was  void,  because  it  was  not  sent  down 
to  the  presbyteries.  This  is  an  admission  that  the  legislative  powers 
of  the  General  Assembly  requires  to  be  bolstered  up  by  the  sanc- 
tion of  those  inferior  judicatories;  an  admission  which  I  did  not 
expect.  The  answer  to  it  is  this :  after  a  usage  of  thirty-six  years, 
and  an  acquiescence  and  co-operation  by  all  the  presbyteries  during 
all  that  long  period,  the  objection  cannot  be  tolerated  in  the  law. 
The  sanction  of  the  presbyteries  by  such  long  usage,  becomes  a 
presumption  of  law. 

There  is  another  circumstance  of  vast  importance  connected 
with  this  matter.  In  1821  a  new  constitution  was  formed,  and  these 
very  excinded  presbyteries  assisted  in  framing  that  constitution, 
and  did  as  much  towards  it  as  Dr.  Green's  presbytery  in  Philadel- 
phia.    All  then  stood  on  the  same  platform,  and  now,  by  a  part  of 


480 

them,  another  part  equally  well  entitled,  are  deprived  of  all  its 
benefits.  I  ask  you  if  you  are  prepared  to  say  that  these  excinded 
presbyteries,  thus  joining  in  the  frame-work  of  this  constitution,  are 
to  have  no  part  or  lot  in  it;  are  to  be  cut  off  without  mercy  and 
without  a  warning. 

They  say  this  Plan  of  Union  is  repugnant  to  the  charter  which 
incorporates  the  trustees  for  the  benefit  oi'  a  Presbyterian  Church, 
and  that  it  cannot  be  Presb5Uerian  if  such  an  alliance  exists.  I 
should  like  to  have  either  of  the  learned  gentlemen  put  his  finger 
upon  any  point  of  time,  when  such  alliances  did  not  exist.  This  is 
a  singular  discovery  in  the  march  of  intellect,  which  seems  to 
have  moved  rapidly  with  the  Old  School  party  for  a  short  time 
past. 

I  shall  not  stop  to  inquire  whether  they  had  a  right  to  abrogate 
the  Plan  of  Union:  I  think  they  had,  and  have  always  tiiought  so. 
I  never  considered  it  a  contract.  But  surely  such  an  abrogation 
should  be  made  on  great  advisement,  and  all  acquired  rights  ought 
10  be  preserved.  Suppose  the  case  of  a  pastor  settled  for  life  with 
a  congregation,  under  this  plan  ;  shall  they  be  allowed  to  break  up 
such  a  contract?  Aliens  are,  by  statute,  in  many  of  the  states,  and  I 
presume  in  this,  allowed,  under  certain  qualifications,  to  purchase 
real  estate.  Would  a  repeal  of  the  law  impair  or  destroy  the  rights 
formed  or  acquired  while  the  law  was  in  force?  All  that  could  or 
ousht  to  be  done  on  abrogating  the  plan,  should  be  to  prohibit 
other  connexions  of  the  kind  from  being  formed  in  future.  But, 
instead  of  sustaining  acquired  rights,  this  Old  School  party  have 
destroyed  them  by  wholesale.  The  only  reservation  is  in  favour 
of  certain  Simon  Pure  presbyteries.  The  General  Assembly  can 
readmit  them,  taking  order  thereon.  This  is  very  significant.  They 
would  admit  such  as  suited  their  oivn  views,  and  keep  out  all  the 
rest.     Could  there  be  more  monstrous  injustice  ! 

The  gentlemen,  however,  undertake  to  palliate  all  these  proceed- 
ings, by  the  conduct  of  the  New  School  party  of  1837;  conduct 
declared  to  be  outrageous,  because,  when  it  was  proposed  to  cite 
these  judicatories  and  try  them,  thus  giving  them  a  chance  to  be 
heard,  that  party  voted  against  it.  But  look  at  the  reasons  why 
they  voted  against  it. 

"  1,  Resolved,  that  the  proper  steps  be  now  taken,  to  cite  to  the 
bar  of  the  next  Assembly,  such  inferior  judicatories  as  are  charged 
by  common  fame  with  irregularities. 

"2,  That  a  special  committee  be  now  appointed  to  ascertain 
what  inferior  judicatories  are  thus  charged  by  common  fame,  pre- 
pare charges  and  specifications  against  them,  and  to  digest  a  suit- 
able plan  of  procedure  in  the  matter;  and  that  said  committee  be 
requested  to  report  as  soon  as  practicable. 

"  3.  That,  as  citations  on  the  foregoing  plan  is  the  commence- 
ment of  a  process  involving  the  right  of  membership  in  the  Assem- 
bly; therefore,  resolved,  that  agreeably  to  a  principle  laid  down, 
chap.  V-  sec.  9th,  of  the  '  Form  of  Government,'  the  members  of 
said  judicatories  be  excluded  from  a  seat  in  the  next  Assembly,  un- 
til their  case  shall  be  decided." 


481 

They  were  all  to  be  excluded  from  their  seats  in  the  Assembly  until 
"ill  should  be  tried.  It  was  plain  to  see  that  all  were  to  be  sacrificed. 
They  had  a  clear  right  when  a  judicatory  was  on  trial  to  exclude 
its  members  from  voting,  but  not  to  exclude  other  members  whose 
judicatories  represented  by  them  were  not  on  trial.  This  was  gross 
injustice.  They  had  an  occasional  majority  that  year,  and  they 
were  determined  to  perpetuate  it.  There  was  no  charge,  no  spe- 
cification ;  all  was  left  vague  and  uncertain,  floating  on  the  breath 
of  common  fame.  Notwithstanding  the  opposition  of  the  New 
School,  they  carried  their  point.  But  the  New  School  opposed  the 
measure,  and  therefore,  instead  of  being  tried  and  heard,  they 
should  be  condemned  at  once,  and  cut  off  by  a  summary  resolu- 
tion. 

But  we  are  also  told,  that  the  New  School  party  opposed  the 
division  of  the  church,  and  therel'ore  the  Old  School  were  justified 
in  cutting  them  oft'  at  once.  You  will  see  their  reasons  for  the 
opposition  on  page  431  of  the  minutes  of  1837. 

"  The  subscribers  had  believed  that  no  such  imperious  necessity 
for  a  division  of  the  church  existed,  as  some  of  their  brethren  sup- 
posed, and  that  the  consequences  of  division  would  be  greatly  to  be 
deprecated.  Such  necessity,  however,  being  urged  by  many  of  our 
brethren,  v/e  have  been  induced  to  yield  to  their  wishes,  and  to  ad- 
mit the  expediency  of  a  division,  provided  the  same  could  be  ac- 
complished in  an  amicable,  equitable,  and  proper  manner." 

"  From  these  papers  it  will  be  seen,  that  the  only  question  of  any 
importance  upon  which  the  committee  diflfered,  was  that  proposed 
to  be  submitted  to  the  decision  of  the  Assembly,  as  preliminary  to 
any  action  upon  the  details  of  either  plan.  Therefore,  believing 
that  the  members  of  this  Assembly  have  neither  a  constitutional  nor 
moral  right  to  adopt  a  plan  for  a  division  of  the  Church,  in  relation 
to  which  they  are  entirely  uninstructed  by  the  presbyteries;  be- 
lieving that  the  course  proposed  by  their  brethren  of  the  committee 
to  be  entirely  inefficacious,  and  calculated  to  introduce  confusion 
and  discord  into  the  whole  church,  and  instead  of  mitigating,  to  en- 
hnnce  the  evils  which  it  proposes  to  remove;  and  regarding  the 
plan  proposed  by  themselves,  with  the  modifications  thereof  as  be- 
fore stated,  as  presenting  in  general  the  only  safe,  certain  and  con- 
stitutional mode  of  division,  the  subscribers  do  respectfully  present 
the  same  to  the  Assembly  for  their  adoption  or  rejection." 

The  New  School  party  finally  yielded  to  a  division,  for  the  sake 
of  peace.  They  believed  that  their  differences  were  slight,  and  that 
there  was  no  need  for  a  division  ;  but  they  yielded  because  their  bre- 
thren thought  otherwise.  There  was  really  no  difl^erence  between 
them,  except  in  metaphysical  subtleties,  which  lie  behind  religion, 
and  have  nothing  to  do  with  practical  piety  or  the  affairs  of  life. 
Gentlemen,  I  should  not  have  alluded  to  this  matter,  if  it  had  not  been 
dwelt  upon  with  much  stress  on  the  other  side,  and  in  a  way  cal- 
culated to  excite  prejudice.  Why  did  not  the  New  School  concur 
in  the  particular  propositions  for  a  division?  Because  the  Old 
School  insisted  upon  retaining  the  name  and  the  succession,  and. 

41 


482 

upon  the  division  being  nnade  at  once  without  sending  it  down  to 
the  presbyteries  for  their  concurrence.  The  concurrence  of  the 
presbyteries  was  indispensable.  What  then  would  have  been  the 
consequence  of  such  a  division?  It  would  have  been  unlawful  and 
not  binding  on  the  presbyteries.  If  these  propositions  had  been  ac- 
ceded to  by  the  New  School,  the  presbyteries  would  have  left  them 
and  treated  them  as  seceders.  The  counsel  pressed  this  matter  as 
though  they  really  believed  the  terms  offered  were  fair.  But  the 
New  School  party  would  have  been  stripped  of  every  thing  had 
they  fallen  into  this  arrangement.  These  two  features  of  their  pro- 
position will  condemn  it  with  all  honest  men.  Perhaps  it  was  not 
so  designed,  but  it  was  clearly  a  trap,  and  the  minority  of  every 
presbytery  adhering  to  the  Old  School,  they  retaining  the  name  and 
the  succession,  would  have  been  entitled  to  all  the  property.  But 
there  was  no  alternative  left.  Divide  as  we  prescribe  to  you,  or 
we  will  abandon  our  judicial  proceedings  and  cut  you  off'  by  reso- 
lution.    They  held  the  knife  to  the  neck,  with  their  casual  majority. 

The  idea  is  put  forth  in  these  excinding  resolutions,  and  has  been 
insisted  upon  by  counsel,  that  these  synods  had  their  origin  in  the 
Plan  of  Union,  and,  therefore,  they  naturally  fell  when  that  union 
was  abrogated.  Hence  these  resolutions  rather  assume  the  appear- 
ance of  declaratory  proceedings  than  positive  enactments.  The 
proposition  is  vague  and  indefinite;  and  when  analyzed  and  applied 
to  the  evidence,  will  be  found  wholly  senseless.  What  do  they 
mean  when  they  say  these  synods  had  their  origin  in  the  Plan  of 
Union?  Do  they  mean  to  say  that  all  the  presbyteries  and  all  the 
congregations  in  those  excinded  districts  are  of  a  mixed  or  congre- 
gational character,  and  were  formed  under  that  plan?  If  they  do, 
it  is  altogether  untrue.  Mr.  Squier,  a  respectable  witness  from  that 
quarter,  and  fully  conversant  with  the  subject,  tells  you  that  in  every 
presbytery  there  were  the  requisite  number  of  clergymen  and  con- 
gregations of  the  pure  Presbyterian  form  throughout  the  entire  ex- 
cinded districts.  This  evidence  is  uncontradicted.  If  by  the  abro- 
gation of  the  plan,  the  mongrel  churches,  as  they  are  called,  had 
fallen  to  the  ground,  the  presbyteries,  sessions  and  synods  would 
have  stood  as  firm  and  as  strong  on  blue-skin  Presbyterian  ground, 
as  the  Presbytery  of  Philadelphia.  Why  then  did  not  the  General 
Assembly  take  order  for  the  presbyteries  to  purge  themselves  of  the 
mixed  churches  as  they  did  in  reference  to  the  districtembraced  in  the 
Synod  of  New  Jersey  ?  It  did  not  suit  their  purpose,  and  would  not 
carry  out  their  covert  designs  to  cut  oflT,  that  they  might  secure  and 
perpetuate  the  majority  to  themselves.  Their  argument,  if  argument 
it  may  be  called,  proves  too  much.  Suppose  the  union  with  Con- 
necticut, which  existed  in  1799  when  the  charter  was  granted,  had 
been  abolished  a  few  years  afterwards,  and  some  one  had  seriously 
pretended  that  such  an  abrogation  actually  destroyed  the  Assembly 
and  the  charter,  because  the  charter  had  its  root  in  such  an  alliance, 
what  would  we  think  of  the  argument?  The  complete  analogy 
between  the  two  cases  must  be  seen  at  once. 

If,  then,  the  excision  cannot  be  justified  as  a  judicial  act,  nor  as 
a  consequence  of  abrogating  the  Plan  of  Union,  can  it  be  main- 


463 

tained  as  an  independent  legislative  enactment?  I  will  admit,  for 
the  sake  of  argument,  that  this  General  Assembly  possesses  legisla- 
tive power.  If  so,  what  becomes  of  the  notion  that  they  are  not 
acting  in  a  quasi  corporate  capacity?  The  legislative  power  of 
all  subordinate  institutions,  is  very  different  from  the  power  of  any 
sovereign  legislature.  It  is  circumscribed  within  reasonable  limits. 
Look  at  the  control  which  the  court  of  king's  bench,  in  England, 
and  the  supreme  courts  in  this  country,  hold  over  the  by-laws  of 
subordinate  corporations.  How  often  do  they  declare  them  void, 
because  in  principle  they  are  unreasonable,  oppressive,  or  unjust? 
The  power  here  claimed,  is  by  by-laws,  or  resolution,  called  legis- 
lation, to  cut  off  and  banish  from  all  right  of  membership  a  large 
portion  of  the  community.  This  is  not  legislation.  It  is  not  em- 
braced within  strictly  legislative  power.  It  is  a  high  sovereign  act 
of  political  revolutionary  power — a  power  denied  to  nations  by 
jurists,  Puffendorf,  B.  8,  c.  5,  s.  9.,  and  reprobated  in  its  exercise  by 
all  historians.  Wherever  it  has  been  exercised  and  has  prevailed, 
it  was  owing  to  the  want  of  a  supreme  controlling  power.  If  a 
government  should  cut  off  a  province  and  send  it  adrift  from  the 
family  of  nations,  resistance  would  follow  if  there  was  sufficient 
power  to  resist.  Civil  war  would  kindle  its  fires.  The  god  of  bat- 
tles would  preside  over  the  scene  and  award  the  victory.  And  who 
is  it,  claims  to  exercise  this  kind  of  power?  A  subordinate  institu- 
tion, religious  too  !  existing  under  the  law,  and  upheld  by  the  law. 
A  representative  body  too,  responsible  to  its  constituents,  and  at- 
tempting to  cut  off  those  very  constituents  or  a  large  portion  of 
them.     For  their  own  views  of  their  powers  see  their  Digest,  p.  29. 

"  1.  That  no  delegated  body  has  a  right  to  transfer  its  powers, 
or  any  part  thereof,  unless  express  provision  is  in  its  constitution. 

"  2.  That  this  Assembly  is  a  delegated  body  and  no  such  provi- 
sion is  in  its  constitution." 

There  is  no  provision  for  excinding  in  their  constitution.  These 
are  correct  views,  and  were  taken  before  they  had  become  so 
deeply  imbued  with  the  spirit  of  despotic  authority.  Why,  gentle- 
men, if  this  extraordinary  doctrine  is  to  prevail,  what  is  to  be  the 
end  of  it  ?  If  the  Assembly  of  1837  can  cut  off  districts  of  3  or  400 
miles  long,  the  Assembly  of  1840  may  cut  off  Pennsylvania.  If  this 
Christian  General  Assembly  may  do  this,  every  civil,  political,  and 
ecclesiastical  institution  in  the  country  may  do  the  same.  If  our 
courts  and  juries  sanction  such  proceedings  there  will  be  no  peace. 
There  are  to  be  found  in  all  bodies,  differences  of  opinion,  and  more 
or  less  party  excitement;  and  once  establish  the  rule,  that  an  occa- 
sional majority  may  perpetuate  its  power  by  cutting  off  the  mino- 
rity in  large  districts,  and  tumult  and  violence  will  follow  without 
bounds.  What  man,  possessing  in  his  bosom  one  spark  of  that 
spirit  of  freedom  which  animates  the  whole  social  system  of  this 
country,  would  join  himself  to  an  institution  that  claims  such  tre- 
mendous power? 

Gentlemen,  this  power  to  deprive  of  rights,  to  disfranchise,  is  in 
its  nature  and  essence,  a  judicial  and  not  a  legislative  power.  It 
can  never  be  legitimately  exercised  without  trial  and  notice  of  the 


484 

charges,  and  an  opportunity  for  defence.  The  gentlemen  will  find 
no  instance  in  all  their  law  books  (jn  corporate  powers,  where  dis- 
franchisement is  treated  as  an  act  of  legislation.  (See  Angel  & 
Ames,  pp.  244,  245,  as  before  recited.)  Assembly's  Digest,  p.  323, 
"no  man  or  body  of  men,  agreeably  to  the  constitution  of  this 
church,  ought  to  be  condemned  or  censured,  without  having  notice 
of  the  accusation  against  him  or  them,  and  notice  given  for  trial." 
It  is  punishment,  and  can  only  be  inflicted  for  offences  of  a  nature 
fairly  warranting  that  species  of  punishment.  Thus,  if  disfranchise- 
ment is  attached  as  a  penalty  to  an  ordinary  by-law,  for  an  offence 
not  warranting  that  species  of  punishment,  it  is  void.  In  Pennsyl- 
vania, sir,  you  have  declared  a  by-law  void  which  disfranchised  ior 
an  offence  not  warranting  disfranchisement. 

But  we  are  told,  genilemen,  there  was  no  hardship  or  punishment 
in  this  excision.  They  who  are  thus  cut  oft',  can  form  new  rclations. 
Is  it  no  hardship  to  deprive  these  people  of  their  rights  under  this 
charter?  To  deprive  them  of  their  relationship  to  this  long  esta- 
blished and  time-honoured  institution  ?  To  cast  upon  them  the 
stigma  of  being  turned  out  of  their  church  ?  If  there  be  any  thing 
which  is  hardship  and  punishment  to  a  pious  man,  who  is  devoted 
to  his  religion,  it  is  to  be  cut  off"  from  the  institutions  of  his  church. 
When  the  captive  Jews  hung  their  harps  on  the  willows  by  the 
rivers  of  Babylon,  they  lamented  the  loss  of  their  home  and  their 
country,  but  they  wept  when  they  remembered  their  Zion.  They 
mourned  for  the  loss  of  their  religious  privileges,  of  those  institu- 
tions and  associations  which  bound  them  to  the  God  of  their  fathers, 
to  the  God  of  Abraham,  of  Isaac,  and  of  Jacob. 

Gentlemen,  in  a  moment  of  party  excitement,  in  the  phrenzy  of 
power,  this  Old  School  party  have  inflicted  upon  their  brethren  the 
deepest  punishment  which  can  be  inflicted  upon  persons  of  their 
views  and  character.  They  call  it  legislation!  So  are  acts  of 
attainder,  passed  by  the  British  parliament,  called  legislation.  But 
what  makes  them  so?  The  omnipotence  of  sovereign  power.  It 
is  doing  violence  to  the  nature  of  things.  It  remained  for  the  Ge- 
neral Assembly  of  this  Church  to  attempt,  in  this  country,  to  act 
out  the  worst  proceedings  of  the  British  Parliament,  in  the  worst 
periods  of  English  history,  by  stripping  large  masses  of  men  of  all 
their  rights  of  membership,  and  then  calling  this  forfeiture  an  act 
of  legislation. 

But  we  are  told  that  the  ecclesiastical  power  is  entirely  indepen- 
dent of  the  civil  power.  That  ihese  acts  of  excision,  however  vio- 
lent and  improper,  having  been  passed  by  the  highest  body  in  the 
church,  must  prevail,  and  that  they  cannot  be  reviewed  in  the  civil 
courts.  I  admit  the  independence  of  ecclesiastical  tribunals  upon 
the  civil  power  as  to  all  mere  ecclesiastical  purposes;  the  civil 
courts  will  not  review  their  proceedings,  on  appeal.  But  when 
these  ecclesiastical  institutions  acquire  property,  when  they  acquire 
corporate  rights  and  privileges,  either  directly  or  indirectly,  through 
trustees,  this  property  and  these  rights  are  held  under  the  law,  and 
must  be  protected  by  the  law.  Every  member  of  such  an  ecclesi- 
astical institution  has  a  right  to  resort  to  courts  of  justice  for  pro- 


485 

tection,  in  respect  to  his  property  and  his  privileges.  If  the  eccle- 
siastical tribunals  keep  within  their  jurisdiction,  and  act  never  so 
indiscreetly  or  erroneously,  their  proceedings  will  be  deemed  valid  ; 
but  if  they  transcend  their  powers,  or  violate  any  of  those  great  fuU' 
damental  -principles  of  law  or  justice,  which  are  deemed  sacred 
under  the  common  law,  they  will  be  arrested.  And  it  is  immaterial 
whether  they  have  done  so  in  the  pretended  exercise  of  judicial  le- 
gislative or  administrative  power.  Such  a  control  has  constantly 
been  exercised  by  the  common  law  courts. 

Look  at  all  that  class  of  cases  where  the  civil  courts  have  re- 
viewed the  conduct  and  opinions  of  parties  in  a  church,  each  charg- 
ing the  other  with  holding  erroneous  doctrines  in  reference  to  the 
fundamental  tenets  of  their  church  :  in  all  those  cases  courts  have 
passed  upon  these  differences  to  settle  a  question  of  property  or 
civil  rights.  3  Mer.  R.,  367,  419;  2  Bligh's  R.,  529;  2  Jac.  & 
Walker,  427;  20  Pickering,  172;  9  Kendall,  ;  7  Halstcd  206; 
4  Halsted  390.     These  were  not  judicial  questions  in  the  church. 

A  striking  illustration  of  the  principle  for  which  I  am  con- 
tending will  be  found  in  the  exercise  of  the  visitatorial  power 
over  eleemosynary  corporations.  There  is  no  principle  better 
settled  than  that  this  power  of  visitation  is  entirely  independent 
of  the  civil  power.  But  suppose  the  visiter  transcends  his  power, 
exercises  a  jurisdiction  not  given  to  him  by  the  founder,  or  in  his 
proceedings,  violates  any  of  the  great  cardinal  principles  of  justice, 
attempting  to  decide  without  hearing  or  notice,  or  to  act  in  a  case 
in  which  he  himself  is  concerned  in  interest,  his  proceedings  will 
be  reviewed  and  arrested  by  the  civil  tribunals  of  the  country. 
2  Term  R.  338 ;  1  W.  Bl.  R.,  22 ;  1  Term  R.  650 ;  2  Lord  Raymond, 
1347,  1348.  In  this  case,  I  do  not  hesitate  to  say  that  this  General 
Assembly  of  1837  stepped  entirely  beyond  their  powers,  in  attempt- 
ing to  pass  these  excinding  resolutions.  That  the  power  thus  to 
disfranchise  is  in  its  nature  judicial  and  not  legislative,  and  that  this 
representative  body,  not  sovereign  but  subordinate,  in  attempting 
thus,  by  a  legislative  act  of  attainder,  to  strip  a  large  mass  of  its 
constituency  of  all  their  rights  of  membership,  have  violated  the 
great  cardinal  rules  of  justice,  and  their  whole  proceedings  ought 
to  be  treated  as  absolutely  void  in  law,  in  reference  to  the  civil 
rights  of  those  members,  under  this  charter  of  incorporation. 

Equally  unfounded  is  the  pretence  of  their  right  to  exclude  our 
members  from  the  Assembly  of  1838,  on  the  ground  that  every  As- 
sembly has  the  right  to  judge  of  the  qualifications  of  its  own  mem- 
bers. Congress  has  this  power.  It  is  given  to  them  by  the  consti- 
tution, absolutely  and  without  appeal.  They  are  therefore  the  sole 
judges,  and  the  courts  cannot  collaterally  review  their  decisions. 
But  the  case  is  entirely  different  with  these  subordinate  bodies. 
They  are,  it  is  true,  independent  of  one  another,  but  not  of  courts 
of  justice.  If  the  Assembly  of '37  attempted  to  control  the  Assem- 
bly or*38,  by  converting  the  moderator  and  clerks  info  dictators, 
the  attempt  was  unlawful.  If  the  Assembly  of  1838,  either  in  obe- 
dience to  such  mandates  or  from  any  other  cause,  should  attempt 

41* 


486 

to  exclude  from  their  seats  those  who  are  lawfully  entitled  to  them, 
the  courts  of  law  will  tell  iheni  their  proceedings  are  void. 

[Mr.  Ingersoll  here  interposed  to  correct  what  he  considered  a 
misapprehension  on  the  part  of  Mr.  Wood,  in  stating  the  effect  of 
the  fourth  resolution  of  excision  in  relation  to  the  return  of  the  ex- 
cinded  members  to  the  church.  Individual  members  were  not  to 
apply  to  the  General  Assembly,  but  to  presbyteries,  and  the  presby- 
teries were  to  apply  to  the  General  Assembly,  not  to  state  the  cases 
of  those  individuals,  but  upon  their  own  application  to  be  admit- 
ted. Mr.  Wood,  in  explanation,  read  the  resolution  in  connexion 
with  the  resolutions  requiring  examination  in  experimental  religion. 
He  also  read  the  clause  of  the  constitution  which  declares  a  pres- 
bytery to  be  bounded  by  territorial  limits,  and  contended  that  the 
effect  was  to  send  them  (the  said  individuals)  out  of  the  excinded 
district,  because  there  was  no  presbytery  there  to  apply  to,  all  being 
cut  off;  but  it  would  be  idle  for  them  to  apply  to  a  presbytery 
within  whose  bounds  they  did  not  reside,  because,  by  the  constitu- 
tion, presbyteries  could  have  no  members  except  within  a  certain 
district:  they  must  therefore  apply  to  the  General  Assembly.  This 
must  be  the  case  v/ith  both  presbyteries  and  individuals.  They,  of 
course,  while  thus  excluded,  could  not  come  in  and  participate  in 
the  organization.  They  could  not  come  in  at  all,  except  on  the 
terms  of  being  examined  on  experimental  religion.  The  presbyte- 
ries could  not  send  commissioners  to  the  Assembly,  because  they 
were  not  presbyteries.  They  could  not  go  to  the  Committee  on 
Commissions,  they  could  only  wait  till  the  Assembly  was  fully 
organized  ;  when  they  could  be  allowed,  perhaps,  to  show,  on  their 
knees,  that  they  had  been  examined  in  experimental  religion,  on 
doctrine  and  discipline,  and  then  they  might  be  let  in  or  not,  at  the 
pleasure  of  the  Assembly.] 

Gentlemen,  I  was  remarking  on  the  difference  between  these 
subordinate  institutions  and  sovereign  bodies,  such  as  legislatures, 
in  deciding  questions  of  membership.  These  subordinate  bodies 
must  do  right.  From  necessity  they  must  decide  upon  all  questions 
of  defect  or  irregularity  in  the  commissions.  But  if  the  General 
Assembly  should  attempt  to  sever  their  own  body,  to  exclude  a 
portion  of  its  members  against  law,  they  are  thereby  attempting  to 
form  an  unlawful  Assembly;  and  all  reasonable  and  proper  efforts 
should  be  made  to  resist  such  an  attempt.  It  is  proper  that  there 
should  be  a  control  over  such  attempts  in  these  inferior  institutions, 
lodged  in  the  higher  courts  of  judicature.  If  they  were  to  judge 
with  impunity  upon  the  qualifications  of  their  members,  and  such 
decisions  should  be  final,  gross  injustice  would  be  done,  and  the 
rights  of  membership  would  be  often  violated.  Why,  gentlemen, 
I  might  refer  you  to  the  Parliament  of  Great  Britain,  to  the  House 
of  Commons,  which  is  a  sovereign  body,  and  has  the  right  to  judge 
of  the  election  and  qualification  of  its  own  members  in  the  last  re- 
sort, and  does  not  allow  the  courts  at  Westminster  to  touch  the 
question.  Did  that  body  give  general  satisfaction  in  its  decisions? 
No.  It  was  found  necessary  to  establish  a  committee  of  elections 
drawn  by  ballot,  to  avoid  party  predominances.     Mr.  Fox,  on  an 


487 

interesting  occasion,  where  his  right  to  a  seat  was  involved,  remark- 
ed hat  he  did  not  expect  favour,  nor  did  he  know  that  he  should 
receive  bare  justice  from  that  house.  He  was  called  to  order.  He 
repeated  the  remark  that  it  might  be  taken  down,  and  in  support  oi 
ils  truth,  referred  to  the  establishment  of  that  very  committee. 
What  reliance  could  be  placed  upon  the  purity  and  correctness  of 
decision  in  these  subordinate  institutions,  if  divested  of  all  responsi- 
bility to  judicial  power,  so  far  as  property  and  right  are  concerned? 
Let  this  very  case  lurnish  an  answer. 

Every  Assembly  so  constituted  as  not  to  give  every  member 
who  has  a  right  to  a  seat  an  opportunity  to  attend  the  Assembly,  is 
unlawful;  and  of  course,  an  attempt  to  exclude  those  who  have  a 
right,  is  an  attempt  to  create  an  unlawful  Assembly.  Angel  and 
Ames  on  Corporations,  275,  276,  277 ;  6  Viner's  Abridgment,  269, 
sec.  11.  This  is  not  confined  to  municipal  corporations,  but  ex- 
tends also  to  those  which  are  private  in  their  nature.  Stow  vs. 
Wise,  7  Connecticut  Reports,  219.  Even  an  order  to  summon  is 
not  sufficient.     Wilcox  on  Municipal  Corporations,  445. 

I  think,  then,  gentlemen,  I  have  established  beyond  doubt  the 
principle  I  have  laid  down,  that  every  attempt  to  form  an  Assem- 
bly without  giving  every  member  an  opportunity  to  sit  and  vote, 
is  an  attempt  to  create  an  unlawful  Assembly.  This  doctrine  is 
clearly  established  by  their  own  books.  In  their  minutes  of  1826, 
page  40,  we  have  the  following  regulation : 

"  That  the  Committee  of  Commissions  be  instructed  to  examine 
the  commissions,  and  to  report  to  the  Assembly  on  those  commis- 
sions which  are  unobjectionable,  and  on  those,  if  such  there  be, 
which  are  materially  incorrect,  or  that  are  otherwise  objectionable. 
That  those  whose  commissions  are  unobjectionable,  immediately 
take  their  seats  as  members,  and  proceed  to  business;  and  that  the 
first  act  be  the  appointment  of  a  Committee  of  Elections,  to  which 
shall  be  referred  all  the  informal,  or  otherwise  objectionable  com- 
missions, with  instructions  to  report  thereon  as  soon  as  practica- 
ble." 

Now  this,  gentlemen,  is  acting  out  the  principle  which  I  have 
stated,  that  in  case  of  informal  commissions,  the  Assembly  of  course 
must  judge  of  their  validity.  But  every  member  having  a  regular 
commission  must  be  reported  by  the  clerks.  These  excinding  acts 
were  wrong,  grossly  wrong;  like  the  case  of  a  city  council  at- 
tempting to  cut  off  some  of  the  wards.  They  were  void  in  law, 
and  commissioners  from  presbyteries  thus  cut  off,  in  coming  up  to 
a  subsequent  Assembly,  should  and  must  be  admitted.  Their  com- 
missions were  all  regular  and  formal.  This  is  admitted.  They 
were  all  regularly  appointed.  What  then  should  keep  them  out? 
The  proceeding  of  1837:  the  excision,  as  it  is  called.  It  might 
better  have  been  called  "  a  deed  without  a  name."  No  lawful  Gene- 
ral Assembly  could  be  constituted  without  allowing  every  member 
with  a  regular  commission  to  sit.  Every  man  of  them  had  a  full 
right  to  a  seat.  Not  a  commission  was  informal,  not  an  election 
contested.     By  the  rule  of  1826,  they  should  have  been  enrolled, 


488 

and  the  Assembly  of  1838,  constituted  without  allowing  them  their 
seats,  was  an  unlawful  Assembly.  This  is  the  law  of  the  land ;  it 
is  carrying  out  the  principles  which  1  have  just  adverted  to,  and  is 
in  perfect  accordance  with  the  doctrines  of  their  own  books. 

It  will  be  borne  in  mind  that  I  do  not  claim  any  right  of  inter- 
ference with  these  ecclesiastical  bodies  by  the  temporal  courts,  far- 
ther than  is  necessary  to  protect  property  and  civil  rights.  If  these 
ecclesiastical  institutions  come  under  the  protection  of  the  law  and 
acquire  property,  they  must  not  be  allowed  to  sport  wantonly  with 
the  rights  of  their  members. 

I  shall  now  proceed  to  show,  gentlemen,  that  there  was  a  con- 
certed plan  to  prevent  any  organization  of  the  General  Assembly 
of  1838  which  should  admit  commissioners  from  the  excinded  dis- 
tricts. This  plan  was  commenced  in  1837,  and  was  to  be  carried 
out  through  the  instrumentality  of  the  moderator  and  clerks.  They 
knew  very  well  that  each  of  these  Assemblies  is  independent  of  the 
others.  One  Assembly  may  repeal  the  acts  of  another,  but  it  can- 
not destroy  the  body.  The  institution  of  the  General  Assembly  is 
permanent,  though  composed  successively  of  diflerent  bodies,  no 
one  of  which  could  destroy  the  institution  itself.  In  the  Assembly 
of  1837,  a  plan  was  contrived  which  they  supposed  would  provide 
the  only  mode  by  which  the  members  from  the  excinded  districts 
could  get  back  into  the  church.  They  adopted  a  course  of  reason- 
ing by  which  they  satisfied  themselves  that,  as  ecclesiastics,  they 
were  beyond  and  above  the  law ;  yet  they  seem  to  have  had  some 
misgivings  upon  the  subject.  They  bring  up  their  trustees  to  the 
sticking  point  of  carrying  out  their  plans  of  excision,  which  they 
were  so  desirous  to  perpetuate,  by  passing  a  resolution  to  indemnify 
them,  if  legal  proceedings  should  be  commenced  against  them  for 
carrying  out  their  measures.  They  knew  the  moderator  and  clerks 
were  efficient  officers,  and  hence  they  pledged  them  to  carry  out 
their  plans.  They  first  introduced  into  the  Assembly  of  1837  a 
resolution  to  that  effect.  This  was  withdrawn  after  these  clerks  had 
given  to  them  their  understanding  of  their  duty,  which  was  to  carry 
out  all  their  measures.  This,  in  my  opinion,  amounts  to  a  pledge ; 
and  it  was  undoubtedly  so  felt  and  understood  at  the  time.  After, 
and  in  consequence  of  this  avowal,  the  resolution  disappeared.  The 
clerks  left  all  this  off  the  minutes,  for  which  they  afterwards,  in  the 
Old  School  Assembly  of  1838,  got  a  rap  on  the  knuckles.  Why 
did  it  not  appear  on  the  minutes  ?  There  is  no  reason  except  that 
they  were  ashamed  of  it.  Dr.  M'Dowell,  the  clerk,  said  the  views 
of  1837  were  not  his  views.  He  could  not  receive  the  commissions, 
though  he  did  not  approve  of  the  excinding  resolution.  I  am  not 
surprised  that  he  left  it  off  the  minutes.  No  doubt,  in  the  language 
of  one  of  our  classic  writers,  he  would  willingly  have  dropped  a 
tear  upon  it  and  blotted  it  out  for  ever. 

I  have  now  done  with  the  conduct  of  the  Assembly  of  1837.  I 
have  shown  their  proceedings  to  be  void,  and  that  they  endeavour- 
ed to  infuse  their  action  into  the  subsequent  Assembly.  I  now  come 
down  to  the  transactions  of  1838. 

In  the  first  place,  gentlemen,  we  find,  in  1838,  the  Old  School 


489 

cnmtnissioners  met  apart  in  secret  convention,  concocting  their 
plans,  based  upon  ihe  acts  of  1837.  Then  the  clerks  refuse  to  re- 
ceive or  enrol  any  commissioners  from  the  excinded  regions.  In 
the  next  place,  the  moderator,  Dr.  Elliott,  refuses  to  entertain  or 
put  to  the  house  any  motion,  the  object  of  which  is  to  bring  in  these 
excluded  commissioners  and  have  them  put  upon  the  roll.  The  con- 
vention, on  the  other  side,  did  not  purport  to  be,  and  was  not,  in 
fact,  an  ex  parte  or  New  School  convention.  All  were  invited 
to  attend  it,  and  some  of  the  Old  School  party  actually  did  attend. 
They  passed  in  that  convention  these  resolutions: 

"Resolved,  That  while  we  regard  with  deep  sorrow  the  existing 
difficulties  in  our  beloved  church,  we  would  fondly  hope  that  there 
are  no  insurmountable  obstacles  in  the  way  of  averting  the  calami- 
ties of  a  violent  dismemberment,  and  of  securing  such  an  organiza- 
tion as  may  avoid  collisions,  and  secure  the  blessings  of  a  perpetuated 
harmonious  action. 

"Resolved,  That  we  are  ready  to  co-operate  in  any  efforts  for 
pacification,  which  are  constitutional,  and  which  shall  recognize  the 
regular  standing  and  secure  the  rights  of  the  entire  church,  includ- 
ing those  portions  which  the  acts  of  the  last  General  Assembly  were 
intended  to  exclude. 

"  Resolved,  That  a  committee  of  three  be  now  appointed,  respect- 
fully to  communicate  the  foregoing  resolutions  to  those  commission- 
ers now  in  session  in  this  city,  who  are  at  present  inclined  to  sus- 
tain the  acts  of  the  last  General  Assembly,  and  inquire  whether 
they  will  open  a  friendly  conference  for  the  purpose  of  ascertaining 
if  some  constitutional  terms  of  pacification  may  not  be  agreed 
upon. 

This  was  sent  to  the  Old  School  convention,  and  an  answer  was 
received,  that  they  cannot  for  a  moment  consider  the  excluding  acts 
of  1837  as  unconstitutional,  and  that  they  have  provided  a  fair  and 
easy  mode  for  the  excluded  to  get  back  into  the  church.  Now, 
gentlemen,  here  is  full  and  complete  evidence  that  the  Old  School 
party  were  determined  to  organize  an  Assembly  on  the  principles 
of  the  exclusion  of  1837.  They  deny  the  proposition  of  the  conven- 
tion, and  say  to  them, — We  mean  to  exclude  all  except  those  who 
have  applied  to  other  presbyteries,  and  been  examined  on  experi- 
mental religion.  In  short,  gentlemen,  they  meant  to  exclude  the 
excinded  from  the  General  Assembly,  unless  their  special  regulation 
for  re-admission  were  complied  with,  and  which  put  the  terms  of 
re-admission  completely  in  their  power.  The  excluded  must  come 
back,  not  as  members,  but  admitting  that  they  are  shut  out,  they 
must  come  asking  for  re-admission  and  for  relief.  There  was  a  de- 
liberate plan  formed  to  exclude  them  entirely,  until  after  the  or- 
ganization, and  to  organize  the  Assembly  without  them.  This  was 
the  design  of  those  Old  School  delegates,  who  took  their  seats  in 
the  church  at  nine  in  the  morning,  to  be  ready  for  the  meeting  of 
the  Assembly  at  eleven,  and  of  the  clerks,  who  required  the  door 
to  be  shut.  This  was  the  deep-laid  plan.  Hence  they  clustered 
around  the  moderator  and  clerks  in  that  part  of  the  church,  in  a 


490 

manner  never  known  before.  The  design  was  to  exclude  from  par- 
ticipation in  the  organization  of  the  house,  all  but  their  own  clique, 
and  to  organize  an  ex  parte,  exclusive,  unlawful  Assembly. 

I  come  now  to  the  clerks.  Their  duty  is  fully  pointed  out  in  the 
rules: 

"That  the  committee  of  commissions  be  instructed  to  examine 
the  commissions,  and  to  report  to  the  Assembly  on  those  commis- 
sions which  are  unobjectionable,  and  on  those,  if  such  there  be, 
which  are  materially  incorrect,  or  that  are  otherwise  objection- 
able." 

They  were  bound  to  put  all  the  regular  commissions  on  the  roll, 
and  to  "  report  to  the  Assembly  those  that  were  incorrect  or  other- 
wise objectionable."  Did  they  do  it?  No.  They  refused  to  ex- 
amine the  commissions  from  the  districts  cut  off  by  these  unlawful 
and  void  excinding  acts,  even  to  touch  them.  Now,  if  these  acts 
of  exclusion  of  1837  were  void,  they  ought  to  have  been  disregard- 
ed by  the  clerks.  A  void  judgment  of  a  court  of  record  will  not 
justify  a  sheriff  in  acting  under  it.  And  are  we  to  be  told  that  a 
mere  clerk  shall  carry  out  a  resolution  originated  in  fraud,  upon 
the  rights  of  others,  and  stripping  of  all  their  rights  in  the  church 
50,000  communicants,  without  giving  them  even  a  chance  to  be 
heard. 

Let  us  look  next  at  the  moderator.  He  too  was  ready  to  carry 
out  these  views.  The  first  motion  made  in  the  Assembly,  was  that 
of  Dr.  Patton.  Its  object  was  to  get  these  commissioners  placed 
upon  the  roll.  The  moderator  decides  him  to  be  out  of  order.  He 
appeals,  and  the  appeal  is  declared  to  be  out  of  order.  It  is  imma- 
terial whether  the  moderator  used  the  expression,  out  of  order,  or 
out  of  order  at  this  time.  It  conveys,  either  way,  the  same  idea. 
It  was  part  of  the  plan  to  exclude  the  members  from  the  excinded 
district,  effect  the  organization  without  them,  and  through  their 
majority,  thus  secured,  perpetuate  the  excinding  resolutions.  Next 
in  order  comes  the  motion  of  Dr.  Mason.  He  produces  the  com- 
missions rejected  by  the  clerks.  His  motion  is  decided  to  be  out 
of  order,  and  no  appeal  from  the  decision  of  this  dictator,  to  the 
house,  is  allowed.  Then  Mr.  Squier,  a  commissioner  from  a  pres- 
bytery within  the  excinded  district,  holds  his  commission  in  his 
hand,  free  from  all  irregularity,  and  demands  to  be  enrolled  and  to 
be  allowed  to  take  his  seat;  but  he  too,  is  refused.  He  had  been 
with  his  commission  to  the  clerks,  who  had  refused  to  receive  it. 
The  Old  School  minutes  of  that  year  state  that  Joshua  Moore,  at 
the  same  time,  came  into  the  Assembly,  presented  his  commission, 
■which  was  received,  and  his  name  immediately,  and  without  any 
motion  or  resolution,  enrolled  by  the  clerks.  Why  was  this  differ- 
ence shown  in  the  two  cases,  between  Mr.  Moore  and  Mr. 
Squier?  Because  the  moderator  was  carrying  out  the  acts  of 
1837.  He  was  carrying  out  the  plan.  What  say  the  minutes  in 
respect  to  the  interrogatories  put  by  the  moderator?  Where  are 
you  from  ?  From  the  Presbytery  of  Geneva.  Is  that  in  the  Synod 
of  Geneva?     It  is.     Then  we  don't  know  you.     You  were  cutoff 


491 

in  1837.  You  can't  come  in  unless  you  have  been  examined  in  ex- 
perimental religion.  Come  after  we  are  organized  and  present 
your  case,  and  we  will  take  order  thereon. 

Suppose  the  clerk  had  left  off  some  of  the  Old  School  commis- 
sioners, would  they  have  been  told  by  the  moderator,  we  do  not 
know  you?  And  what  is  their  excuse  for  not  receiving  those  com- 
missions? They  say  they  had  called  for  those  only  which  had 
not  been  presented  to  the  clerks.  Dr.  Elliott's  own  testimony  sets 
this  right.  He  tells  you  that  he  called  for  commissions  which  were 
in  connexion  with  the  General  Assembly. 

If  these  fifty  commissioners  had  been  Old  School  men,  would  he 
have  rejected  them  ?     No  body  believes  it.     And  he  would  have 
done  right  in  receiving   them.      The  clerks  had  grossly  violated 
their  duty  in  not  reporting  all.     Cannot  the  General  Assembly  cor- 
rect the  error  of  their  clerk?    If  not,  then  he  might  have  excluded  all 
but  fourteen  to  form  a  quorum,  and  there  could  be  no  remedy.    Shall 
the  moderator,  in  the  plenitude  of  his  power,  say  this  is  not  the 
time?     When  is  the  time?     They  were  on  the  eve  of  completing 
their  organization.     When  would  be  the  time  if  not  then?     Shall 
they  wait  till  after  the  committee  of  elections  has  reported  upon 
their  cases?     Why  this  committee  is  not  appointed  till  after  the 
organization,  and  then  they  are  to  pass  upon  those  commissions  only 
that  are  informal — not  regular  or  constitutional.     Now  it  is  seri- 
ously contended  that  the  clerks  are  clothed  with  all  this  power. 
The  moderator  did  not  intend  to  let  them  go  to  the  committee  of 
elections.     Dr.  Mason  sought  to  bring  these  commissions  before  the 
house  and  he  took  the  last  point  of  time  when  he  could  do  it.     If 
the  moderator  intended  to  prevent  it,  as  he  unquestionably  did,  he 
took  the  time  best  fitted  for  his  purpose.     He  refuses  to  entertain 
the  motion,  refuses  to  put  the  appeal.     He  knew  they  could  get  to 
the  committee  of  elections  only  through  the  house;  that  was  the 
only  way ;  and  he  was  determined  to  prevent  their  coming  upon 
the  table  of  the  house.     But,  gentlemen,  there  is  some  dispute  as  to 
the  words  of  the  moderator  at  this  time.     Let  us  look  at  the  Old 
School  minutes,  their  own  minutes  of  1838.     They  are  referred  to 
by  Dr.  Elliott,  who  says  they  are  true  as  far  as  they  go.     They  say 
he  asked  if  these  commissioners  belonged  to  the  Assembly  at  the 
close  of  the  session  of  1837.     Now  if  he  wished  to  know  whether 
these  commissions  had  been  to  the  clerk,  this  question  was  non- 
sense.    If  he  wished  to  carry  out  the  illegal  acts  and  reject  the 
commissions  it  was  a  pertinent  question.     The  moderator  decla- 
red Dr.  Mason  out  of  order.    He  called  for  commissions  from  pres- 
byteries in  connexion  with  the  General  Assembly  at  the  close  of  its 
session  in  1837.     He  puts  out  all  these  and  calls  for  others.     Does 
not  this  show  as  plain  as  day,  that  the  object  of  the  moderator  was 
the  same  as  the  Old  School  convention,  to  keep  out  these  commis- 
sioners?    To  keep  them  from  the  committee  of  elections  even,  (for 
that  was  the  only  door  to  that  committee)  unless  they  should  come 
in  afterwards  and  show   that  they  had  been  examined  on  experi- 
mental religion.     And  the  reply  to  Mr.  Squier  was  to  the  same 
effect.     He  did  not  know  Mr.  Squier  as  a  commissioner.    He  knew 


492 

him  personally.  He  knew  that  Geneva  was  always  in  their  con- 
nexion before.  He  knew  Mr.  Squier  was  entitled  to  his  seat,  ex- 
cept that  he  was  cut  off  in  1837,  and  he  meant  to  say  to  him, 
you  can't  come  in  unless  you  are  examined  on  experimental  re- 
ligion. 

Now,  gentlemen,  let  me  ask  you  on  what  possible  ground  the 
moderator  refused  to  put  the  appeal  to  the  house  ?  By  their  rules 
the  house  was  sutficient  for  this  business.  Now,  Dr.  Mason's  only 
object  was  to  show  that  the  clerks  had  refused  to  do  their  duty.  It 
was  the  first  business  after  they  were  ready  for  business.  If  he 
had  waited  longer  the  house  would  have  been  organized.  The 
Old  School  convention  the  day  before  had  said  they  did  not  belong  to 
the  Assembly.  The  object  of  the  moderator  was  plainly  to  pre- 
A  3nt  them  from  coming  in.  If  there  is  any  principle  which  is  clear, 
it  is  that  the  moderator  must  allow  an  appeal  from  his  decision.  It 
is  laid  down  over  and  over  again  in  the  book,  no  matter  whether 
the  rules  are  in  force  or  not.  If  they  are,  then  they  give  an  appeal. 
If  they  are  not,  then,  by  the  very  nature  of  the  case,  there  must  be 
an  inherent  right  of  appeal,  unless  the  moder;itor  be  a  dictator. 
Now,  gentlenien,  I  have  shown  you  that  the  clerk  refused  to  enrol 
these  commissioners  according  to  their  own  rules.  The  moderator 
refused  to  put  motions — refused  to  put  appeals  from  his  own  deci- 
sion in  violation  of  the  established  order  of  the  Assembly.  They 
thus  were  all  guilty  of  gross  violations  of  duty.  It  remains  now  to 
show  that  these  violations  of  duty  justify  their  removal. 

[On  the  opening  of  the  court,  on  Monday  morning,  Mr.  Wood  ex- 
amined the  construction  of  the  excinding  resolution,  as  to  the  pres- 
oyteries  strictly  Presbyterian  in  doctrine  and  in  order  getting  back 
into  the  church.  (See  the  resolution,  which  he  read.  No.  4,  at  the 
top  of  page  57  of  this  report.)  This  seems  to  imply  that  the  pres- 
byteries may  come  to  the  General  Assembly.  They  cannot  how- 
ever, according  to  these  excinding  acts  come  by  and  through  their 
commissioners,  for  the  right  to  appoint  commissioners  could  only  ex- 
ist while  they  are  in  connexion  with  the  Assembly.  Besides  they 
cut  off  the  synods,  and  this  disarranges  the  whole  Presbyterian 
plan.  Suppose  commissioners  from  these  presbyteries  should  come 
and  be  admitted,  there  would  be  no  synods  to  which  they  were 
amenable — the  gradation  of  judicatories  is  destroyed.  Now  these 
synods  are,  as  is  alleged  on  the  other  side,  of  divine  right.  Then  ad- 
mitting these  commissions  from  presbyteries  belonging  to  no  synod 
would  violate  the  divine  injunction  according  to  their  view  of  it. 
But,  gentlemen,  they  are  not  of  divine  right  by  the  Confession  of 
Faith.  They  are  only  agreeable  to  scripture.  The  great  thing  is, 
they  must  come  as  '\i  out  of  us,  not  belonging  to  us,  and  come  "  fo 
unite  with  us"  on  examination  on  experimental  religion.] 

Gentlemen,  I  have  shown  to  you  that  the  act  of  1837,  was  uncon- 
stitutional and  void.  That  the  Old  School  delegates  and  the  mode- 
rator and  clerks  determined  to  carry  out  in  1838  these  illegal  acts. 
TAeiV  Assembly  of  1838  acted  on  that  principle  of  exclusion.     They 


493 

excluded  the  commissioners  from  the  excinded  districts  to  the  end. 
They  began  wrong  and  they  continued  wrong,  and  lh;U  Assembly 
was  born  rickety  and  lived  so.  In  1838,  after  having  organized 
on  the  exclusive  plan,  they  passed  an  act  (reads  "3d  section  of  act 
I."  of  Old  School  Assembly  of  1838,)  declaring  that  no  one 
should  be  considered  as  belonging  to  the  Church  unless  he  was  will- 
ing to  adhere  to  llieAr  Assembly,  on  the  basis  of  the  proceedings  of 
1837  and  1838;  and  that  the  minority  of  every  subordinate  judicatory 
so  adhering  should  be  the  true  presbytery.  Thus  they  not  only 
organized  on  the  principle  of  exclusion,  but  they  carried  it  out  to  its 
fullest  extent  to  the  very  end,  (vid.  statistics)  making  the  minority 
the  true  stock.  In  their  statistical  table  they  exclude  us.  Why 
then  should  we  have  waited  till  after  their  organization?  Only  to 
have  given  them  the  opportunity  to  perpetuate  their  action.  Why 
do  they  tell  us  they  would  have  received  us  back  again,  and  have 
killed  the  fatted  calf?  Yes  they  would  have  killed  the  fatted  ealf 
for  their  own  festival  of  triumph,  and  the  exclusives  alone  would 
have  eaten  of  the  banquet.  Why  did  they  refer  to  the  prodigal  son, 
to  that  passage  of  scripture  as  remarkable  for  the  beauty  and  sim- 
plicity of  conception  as  for  the  fine  moral  it  conveys?  Is  there 
any  parallel?  Had  that  son  been  driven  out  from  his  home  and 
cut  off  without  a  hearing?  And  Missouri  too,  had  she  been  thus 
driven  out  and  excluded  from  the  Union?  They  might  better  take 
the  case  of  l^oland,  the  land  of  Kosciusko,  where  despots  divided 
the  country,  and  drove  out,  without  warning,  a  large  portion  of  the 
people. 

The  gentlemen  on  the  other  side  are  entirely  wrong  in  supposing 
that  we  meant  to  make  a  new  organization.  This  was  not  so.  We 
only  meant  to  continue  the  organization  already  beg;un,  on  those 
legal  principles  which  the  others  were  violating.  We  turned  out 
the  otficers  for  cause.  If  these  officers  had  been  taken  sick,  and 
others  had  been  appointed,  it  clearly  would  not  have  been  a  new 
organization,  but  only  a  mere  change  of  officers  and  continuance  of 
the  old  organization. 

The  learned  counsel  also  said  that,  having  knocked  down  Mr. 
Cleaveland,  he  should  give  him  a  few  more  blows.  This  would  be 
ongallant  in  a  gentleman  of  his  bearing.  I  will  vindicate  the  gen- 
tleman against  himself.  He  has  not  knocked  Mr.  Cleaveland  down, 
a'>r  kicked  him  after  he  was  down.  Had  the  Assembly  power  to 
remove  its  officers?  If  an  officer  refuses  to  do  his  duty,  he  may  be 
removed.  This  is  in  the  nature  of  all  bodies.  It  is  and  must  be  an 
inherent  power,  or  else  he  is  dictator.  Jefferson's  Manual  slates 
that  a  speaker  n^ay  be  removed.  See  also  Angel  and  Ames,  247: 
Ministerial  officers  may  be  removed  at  pleasure  without  no- 
tice. And  so  in  the  constitution:  he  is  moderator  "till  ano- 
ther be  chosen."  This  implies  right  to  remove.  A  removal  of 
such  an  officer  does  not  disfranchise.  Not  so  an  officer  who 
is  of  the  essence  of  the  corporation,  as  a  mayor,  an  alderman, 
an  integral  part  of  the  body.  The  case  in  9th  Wendell,  402, 
shows  the  power  of  amotion.  It  is  there  explicitly  laid  down 
that  they  ought  to  have  removed  the  clerk.  Was  there  cause  to 
42 


494  « 

remove  these  officers?  This  was  no  petty  irregularity,  no  hasty 
sally  of  temper,  that  might  happen  to  any  man,  no  trivial  omission 
of  duty.  It  is  a  case  of  wrong,  deep  and  deadly.  No  one  has  ever 
heard  of  such  a  case.  This  excinding  process  was  a  new  machine 
to  cut  off,  at  one  stroke,  at  one  drop  of  the  axe,  two  hundred  thou- 
sand. It  is  isolated.  It  stands  alone  in  its  own  gloomy  grandeur. 
I  say  with  pride  as  an  American,  that  our  civil,  political  and  eccle- 
siastical history,  does  not  furnish  any  thing  like  it.  Refusing  to  put 
a  motion  on  an  appeal!  They  say  there  was  no  house;  that  the 
moderator  and  clerks  are  every  thing;  that  they  make  the  house; 
and  that  only  when  organized  the  house  is  ready  to  act.  Gentle- 
men of  the  jury,  you  are  men  of  business ;  you  have  all  been  often 
concerned  in  organizations.  How  do  they  organize  bodies?  The 
members  come  together,  mutually  exhibit  their  vouchers,  and  sit 
together  and  act  in  a  process  of  organization.  So  here,  the  Assem- 
bly, in  its  incipient  stage,  is  formed  and  constituted  by  prayer. 
They  have  ransacked  the  minutes,  and  find  it  is  always  so.  The 
General  Assembly  then  exists,  not  fully  organized,  but  as  a  body  in 
process  of  organization.  The  (tlerks  report  to  whom?  The  Com- 
mittee of  Commissions  are  acting  as  a  committee  of  the  house. 
There  is  no  house!  They  report  to  the  house.  There  is  no  house! 
According  to  this  notion,  all  is  in  a  state  of  chaos  until  moulded  and 
organized  by  the  old  moderator  and  clerks!  Why,  if  sheep  scat- 
tered through  a  country  were  to  be  formed  into  a  flock,  they  might 
not  be  able  to  get  on  without  a  shepherd ;  but  a  body  of  rational 
men  need  no  such  shepherd  to  collect  them  together.  They  use 
the  moderator  and  clerks  as  conveniences.  Suppose  there  were  no 
moderator  there,  or  the  moderator  and  clerks  should  be  taken  sick, 
could  they  never  organize?  Suppose  the  clerk  should  refuse  to 
enrol  more  than  ten,  so  that  no  quorum  could  be  formed,  could  no- 
thing be  done?  There  is  no  house,  and  all  must  pocket  their  com- 
missions and  go  home  !  I  lay  down  this  proposition,  that  the  mutual 
coming  together  of  the  members,  with  the  knowledge  among  them- 
selves of  their  respective  claims  to  membership,  derived  from  a 
mutual  exhibition  of  their  vouchers  or  otherwise,  constitutes  a  pre- 
liminary Assembly  sufficient  for  the  purpose  of  appointing,  remov- 
ing, and  re-appointing  officers,  of  establishing  or  changing  the  time 
and  place  of  meeting,  receiving  motions,  adopting  resolutions,  and 
doing  all  necessary  and  proper  acts  incident  to  the  process  of  com- 
plete organization.  The  regulation  that  the  officers  of  a  preceding 
body  shall  oflliciate  till  others  are  chosen,  does  not  divest  the  body 
thus  organizing  of  the  same  power  over  them  as  it  would  have  over 
officers  chosen  by  itself  It  is  a  mere  rule  of  convenience,  to  dis- 
pen.se  with  the  trouble  of  choosing  officers  in  the  first  instance. 
The  usual  course  in  organizing  bodies  is  to  appoint  a  chairman. 
Some  member  rises  and  moves  that  A.  B.  take  the  chair,  and  C.  D. 
he  clerk,  and  a  committee  be  appointed  to  examine  the  testimonials 
of  the  members.  That  was  just  the  case  here.  The  only  difference 
wa€,  that  the  old  moderator  and  clerks  by  rule  perform  these  ser- 
-viccs.  And  by  the  same  rule,  this  old  moderator  is  only  to  preside 
til!  another  is  chosen;  and  it  was  never  dreamed  before  that  the 


495 

body,  in  the  process  of  organization,  was  completely  under  their 
control.  If  they  will  not  do  their  duty,  or  if  they  are  absent,  the 
body  appoints  others.  This  occurs  in  thousands  of  instances  every 
year  in  this  country,  which  has  in  it  nnore  of  these  various  associa- 
tions than  any  other  in  the  world.  Now,  it  is  true,  gentlemen,  the 
old  moderator  and  clerks  entered  upon  their  duty,  but  they  refused 
to  do  their  duty,  and  a  refusal  to  go  on  and  complete  the  organiza- 
tion, upon  principles  of  law,  and  according  to  the  settled  rules  of 
the  house,  is  surely  equivalent  to  being  sick  or  absent.  The  clerks, 
by  the  rule  in  the  minutes  of  1826,  page  40,  are  bound  to  put  all  on 
the  roll.  They  did  not:  they  refused  to  enrol  regular  and  consti- 
tutional commissioners,  and  violated  the  rule  and  the  principle  of 
law.  The  moderator  refused  to  do  his  duty.  Efforts  were  made 
to  compel  the  clerks  to  do  their  duty,  and  the  moderator  refuses  to 
put  motions  to  the  house,  refuses  to  put  appeals,  makes  himself  a 
dictator,  and  obstructs  every  effort  to  make  a  constitutional  organ- 
ization. Is  not  this  a  refusal  to  do  his  duty  ?  It  is  more :  it  is  con- 
cert, collusive  contrivance  to  carry  out  a  plan,  of  which  the  Old 
School  conventions  of  1837  and  1838,  the  excinding  acts  of  1837, 
the  pledge  of  the  clerks,  and  this  concert  in  1838,  were  parts. 
Fraud  vitiates  everything:  no  principle  is  better  settled.  It  de- 
stroys all  proceedings.  Even  the  decisions  of  courts,  the  title  to  pro- 
perty, fines,  recoveries,  the  strongest  assurances  in  the  laws,  crum- 
ble to  pieces  if  infected  with  fraud.  Now,  gentlem.en,  I  do  not 
intend  to  impeach  motives.  The  moderator  was  under  excitement: 
he  supposed  it  was  right  to  cut  off  his  brethren  by  hundreds  of 
thousands;  but  in  law,  under  the  laws  of  Pennsylvania,  this  is  a 
fraud.  Suppose  a  man  becomes  embarrassed  and  fails,  and  makes 
an  assignment,  but  keeps  back  a  part  of  his  property  for  himself 
and  his  family.  He  does  it  conscientiously,  perhaps,  but  it  is  wrong; 
it  is  in  law  fraudulent.  So  this  was  a  fraudulent  conspiracy,  not 
only  to  destroy  our  rights,  but  to  continue  and  sustain  the  principle 
of  exclusion. 

The  next  ground  of  objection  to  our  proceedings  is,  that  Mr. 
Cleaveland  was  called  to  order,  and  that  a  call  to  order  arrests  all 
proceedings.  Can  it  be,  gentlemen,  that  these  gentlemen,  who  have 
come  from  Congress  to  instruct  us  in  parliamentary  rules,  are  right? 
Can  the  moderator  thus  preserve  his  power  and  make  himself  dic- 
tator? The  rule  that  business  stops  on  a  call  to  order,  is  good  for 
usual  practical  purposes.  But  is  it  true  that  when  a  chairman  re- 
fuses to  do  all  his  duty,  and  a  motion  is  made  to  remove  him,  if  he 
raps  with  his  hammer  and  cries  order,  he  is  safe,  and  the  business 
of  the  meeting  cannot  be  done?  But  there  is  another  view  of  this 
matter.  The  motion  to  put  these  commissions  on  the  roll  was  a 
privileged  question.  It  must  be  so  from  the  nature  of  the  case,  in- 
asmuch as  it  related  to  the  formation  of  the  house,  and  of  course 
it  took  precedence  of  all  other  questions.  They  say  that  there  was 
an  easy  way  to  get  these  commissions  on  the  roll;  that  is,  through 
the  committee  of  elections.  Now  let  us  advert  again  to  the  rule  on 
that  subject: 


496 

/  "That  the  committee  of  commissions  be  instructed  to  examine 
the  commissions,  and  to  report  to  the  Assembly  on  those  commis- 
sions which  are  unobjectionable,  and  on  those,  if  such  there  be, 
which  are  materially  incorrect,  or  that  are  otherwise  objectionable- 
That  those  whose  commissions  are  unobjectionable,  immediately 
take  their  seats  as  members,  and  proceed  to  business;  and  that  the 
first  act  be  the  appointment  of  a  committee  of  elections,  to  whicii 
shall  be  referred  all  the  informal,  or  otherwise  objectionable  com- 
missions, with  instructions  to  report  thereon." 

All  commissions,  formal  and  informal,  must  be  reported  upon  by 
the  clerks,  the  regular  ones  enrolled,  and  the  informal  and  defec- 
tive ones  only  go  to  the  committee  of  elections.  Now.  the  clerks 
had  not  put  on  all  the  regular  commissions,  as  required  by  the  rule. 
The  house  was  not  ready  for  business;  the  next  business  was  not 
to  appoint  a  committee  of  elections,  but  to  complete  the  roll  of 
regular  commissions:  and  the  effort  of  Patton,  Mason  and  Squier 
was  directed  solely  to  getting  upon  the  roll  the  regular  commissions 
left  off  by  the  clerk;  and  this  must  be  done  before  there  can  be  a 
house  fully  organized  to  appoint  a  committee  of  elections.  They 
say,  on  the  other  side,  the  motion  for  a  committee  of  elections  was 
before  Mr.  Cleaveland's  motion.  This  is  not  so.  They  are  mis- 
taken. It  was  pending  Mr.  Cleaveland's  motion.  Their  minutes, 
proved  by  the  moderator  to  be  correct,  say,  that  while  Mr.  Cleave- 
iand  was  speaking,  Mr.  Moore  was  enrolled ;  and  afterwards,  it  was 
moved  to  appoint  a  committee  of  elections. 

Now,  observe,  gentlemen,  here  were  about  sixty  commissioners, 
whose  commissions  were  regular,  and  not  put  on  the  roll.  Dr.. 
Patton  tries  to  get  them  on,  is  refused,  and  his  appeal  is  refused- 
Dr.  Mason  tries,  is  refused, ^and  his  appeal  is  denied;  and  Mr. 
Cleaveland  rises.  There  was  no  motion  previously  pending,  as 
they  say.  Now.  according  to  the  principles  of  the  other  side,  the 
house  could  not  correct  the  grossest  error  of  the  clerks.  It  has  no 
control  over  these  officers. 

This  was  carrying  out  their  plan  with  a  veVigeance.  It  was  for 
ever  excluding  every  man  from  the  excinded  region.  A  more  ad- 
mirable plan  for  a  casual  majority,  arrogant  and  overbearing,  to 
perpetuate  power,  was  never  contrived. 

Gentlemen,  I  must  request  your  patience  while  I  follow  these 
gentlemen  through  the  positions  they  have  taken. 

Another  objection  is,  that  Cleaveland's  object  was  to  have  a  por- 
tion organize  the  Assembly,  excluding  the  Old  School  members, 
that  "  We,"  means  the  New  School,  not  the  General  Assembly, 
have  consulted  counsel.  Why,  gentlemen,  if  there  be  a  fact  in 
this  case  proved  beyond  dispute,  it  is  tliat  their  object  was  to  secure' 
a  general  organization,  embracing  all,  as  they  stood  in  the  begin- 
ning of  1837,  while  the  other  side  sought  a  partial  organization. 
Look  at  the  conventions  and  the  notes  interchanged  between  them. 
The  New  School  say  they  wish  all  to  come  in.  The  Old  School 
say,  No,  you  must  exclude  the  excinded.  Look  at  our  Pastoral 
Letter.     What  is  the  meaning  of  "  we,"  as  there  used?     It  means 


497 

the  General  Assembly.  Look  at  our  statistical  tables,  and  you  find 
that  we  means  the  whole  churck.  New  JSchool  and  Old,  in  opposition 
to  a  clique  who  have  determined  to  tear  off  a  large  limb  of  the 
church.  Look  at  our  convention.  "  We,"  means  «//.  The  adver- 
tisement calls  for  all.  It  opens  the  doors  for  the  whole  church,  in- 
vites consultations  and  asks  for  the  prayers  of  all  to  preserve  unity 
and  peace,  declares  that  party-conventions  are  to  be  deprecated, 
invites  all  the  delegates  to  meet.  Some  of  the  Old  School  did  come, 
and  if  others  did  not,  it  was  their  own  fault.  So  too,  Mr.  Cleaveland 
by  "We,"  means  the  house,  the  Assembly,  all,  not  a  part,  but  the 
whole. 

The  next  objection  is,  that  the  old  moderator  and  clerks  were 
not  expressly  displaced;  that  is,  they  did  not  say  that  Dr.  Elliott  was 
displaced.  Gentlemen,  Mr.  Cleaveland's  object  was  evidently  to  do 
as  little  violence  to  the  feelings  of  Dr.  Elliott  as  possible.  When  he 
rose,  he  faced  the  moderator,  but  turned  gradually  round  facing  the 
whole  house,  for  the  motion  was  of  such  a  nature  as  not  to  be  made 
to  the  moderator;  and  he  stated  that  he  wished  to  be  as  little  dis- 
courteous as  possible.  Gentlemen,  the  doctrine  is  distinctly  laid  down 
by  every  writer  on  corporations  (vid.  Wilcox,  246,)  that  the  power 
to  amove  may  be  used  simply  by  appointing  another;  and  the  lan- 
guage of  their  constitution  is  to  the  same  eflect.  He  is  only  to  pre- 
side, says  that  constitution,  till  another  be  chosen.  Is  it  now  right, 
gentlemen,  to  defeat  all  the  object  designed,  which  was  to  bring 
all  the  parts  of  the  church  together,  Dr.  Green  and  Dr.  Barnes  and 
all,  as  they  were  before  that  excision  took  place,  because  the  dis- 
placing of  the  old  officers  was  not  formally  mentioned? 

But  we  are  told  that  Mr.  Cleaveland  stated  that  he  should  pro- 
ceed with  as  much  expedition  as  possible.  Well,  gentlemen,  is  that 
wrong?  Look  at  the  circumstances.  Every  thing  must  be  judged 
of  by  its  circumstances.  The  trustees  of  the  church  had  ordered 
that  no  proceedings  should  be  had  in  the  church  except  under  the 
old  moderator  and  clerks,  manifestly  forming  a  part  of  the  great 
plan  of  the  Old  Schqol  clique  to  perpetunle  the  exclusion  through 
the  instrumentality  of  these  officers.  Mr.  Cleaveland  then  might 
have  said,  "  We  cannot  use  this  church  unless  we  do  as  the  old  mo- 
derator and  clerks  choose;  let  us  go  into  the  street."  The  case  of 
Field  V.  Field,  in  9  Wendell,  furnished  by  the  other  side,  proves  this. 
They  cited  this  case  because  there  the  exclusives  had  with  them 
the  clerk  and  here  they  had  the  moderator:  they  knew,  that  in  rely- 
ing upon  little  circumstances  like  this,  instead  of  great  principles, 
only  serves  to  lead  us  astray.  But,  gentlemen,  we  must  look  to 
principle.  What  is  the  principle  of  that  case?  Why,  that  if  part 
are  about  to  organize  an  exclusive,  partial,  and  unlawful  Assembly, 
those  who  wish  to  organize  lawfully,  if  otherwise  prevented,  may 
take  to  the  open  air  and  organize  there.  In  that  case  there  was  an 
attempt  to  exclude  a  part.  Here  there  was  an  attempt  to  exclude 
a  part.  There  the  party  who  remained  in  the  church  had  a  legal 
right  to  the  church.  Here  there  was  a  right  to  the  church  in  the 
exclusives  also,  or  in  those  leagued  with  them,  which  is  the  same 
thing.     They  had  a  right,  gentlemen,  to  go  out  of  the  building  into 

42* 


498 

that  Ranstead  court,  or  to  the  nearest  convenient  place,  and  organize 
there.  But  they  did  not  go,  they  siaid  under  ail  their  embarrass- 
ments, and  made  the  effort  to  secure  the  co-operation  of  the  whole 
church,  exclusives  and  all. 

But  we  are  asked,  why  did  not  Dr.  Fisher  take  the  chair?  Dr. 
Fisher  says  he  feared  a  riot.  Look  at  the  circumstances ;  their  de- 
termination to  carry  on  their  unlawful  organization.  Dr.  Elliott 
plainly  did  not  intend  to  allow  them  to  do  any  thing.  As  soon  as 
he  heard  the  first  word  about  coun seUearned  in  the  law,  his  hammer 
began  to  operate.  Suppose  Dr.  Fisher  had  tried  to  take  the  chair. 
The  resolution  obtained  from  the  trustees,  to  secure  Dr.  Elliott  in  his 
seat,  furnished  ample  evidence  that  he  did  not  mean  to  give  it  up. 
Dr.  Fisher  says,  they  were  afraid  of  the  trustees,  and  therefore  they 
proceeded  with  as  much  expedition  as  possible,  and  this  too  after 
the  resolutions  were  sent  to  the  Old  School  convention,  explaining 
the  principle  upon  which  they  were  to  act,  that  all  must  be  admitted. 
Now,  suppose  in  the  case  in  9  Wendell  they  had  addressed  the 
othei;  party  and  remained  in  the  house,  instead  of  organizing  in  the 
open  air,  surely  it  would  have  done  as  well  as  to  go  out  of  the 
church.  They  say,  however,  that  we  went  to  the  rear  of  the  As- 
sembly, a  position  unfavourable  for  hearing.  But,  gentlemen,  keep 
in  view  the  circumstances.  Was  not  this  necessary?  We  could 
no'  go  front  for  the  noise,  the  cries  of  hear,  order,  and  for  the  mo- 
derator's hammer.  The  same  principles  as  would  justify  going 
outside  of  the  house  to  organize,  would  surely  sustain  an  organiza- 
tion made  inside  of  the  house,  in  the  rear.  The  Old  School  could 
have  heard  if  they  had  been  so  disposed. 

The  next  objection  is,  that  it  was  very  unlawful  not  to  take  the 
last  previous  moderator  in  lieu  of  Dr.  Elliott.  Others  were  present. 
This  does  not  apply  to  the  case.  The  rule  is  to  take  the  last  mode- 
rator, and  if  he  is  7wt  there,  then  the  next  behind  him.  But  he  was 
there,  refusing  to  do  his  duty,  going  wrong,  The  constitution  gives 
the  y)ower  to  choose,  and  the  person  to  be  chosen  is  not  li- 
mited to  any  class.  They  might  choose  another.  That  power  is 
inherent  in  all  bodies;  to  appoint  another  when  the  moderator  re- 
fuses to  do  his  duty.  But  suppose  they  should  have  ta.ken  the  last 
moderator  present.  Dr.  Witherspoon,  and  did  not.  what  would  have 
been  the  eflect?  Why  the  house  dispenses  with  its  own  rule,  it  did 
so  in  1835.  and  it  did  not  vitiate.  When  Dr.  Beman  left  the  chair 
they  did  not  go  back,  but  took  up  the  business  where  it  had  been 
left  by  him.  Removing  a  moderator  is  not  a  revolutionary  act,  but 
an  act  in  the  course  of  business,  rendered  necessary  by  the  conduct 
of  that  officer. 

The  next  point  on  the  other  side  is,  that  the  majority  was  against 
removing  the  moderator.  That  we  rely  upon  an  intendment  of  law, 
is  the  burden  of  their  song  from  beginning  to  end.  How  shall  we 
ascertain  the  majority,  gentlemen  ?  By  putting  it  to  vote,  of  course. 
This  was  done,  and  it  they  would  not  vote,  we  could  not  make  them. 
In  Angel  &  Ames,  67,  it  is  laid  down  that  a  majority  of  those  voting 
prevails,  even  if  the  majority  protest  against  going  into  a  vote.  This 
venerable  institution,  while  under  the  dominion  of  common  sense. 


499 

have  established  rules  of  their  own,  singularly  conformable  to  the 
principles  of  law  in  all  their  course,  as  I  have  already  remarked. 
Such  was  their  wisdom  before  passion  had  obscured  their  judgment. 
Their  .SOth  rule,  found  at  page  455  of  the  book  called  the  Confession 
of  Faith,  is  explicit  in  regard  lo  silent  members,  that  they  "must 
be  considered  as  acquiescing."'  But,  gentlemen,  this  talk  about 
"majority  must  be  intended  only  to  excite  prejudice.  A  majority 
cannot  force  an  illegal  organization  upon  the  minority.  The  case 
of  Field  V.  Field,  in  9  Wendell,  was  referred  to  by  the  other  side, 
to  show  that  a  majority  may  force  any  thing  through.  Is  this  the 
principle  of  that  case?     By  no  means. 

There,  the  majority  tried  to  prevent  the  minority  froin  makino-  a 
lawful  organization  in  the  house,  which  was  the  usual  place  of 
meeting.  The  minority  withdrew,  went  outside,  and  there  organ- 
ized under  a  tree,  and  what  say  the  supreme  court  of  New  York? 
Why,  that  the  minority  was  the  lawful  Assembly.  It  was  in  that 
case  objected,  that  the  minority  could  not  organize  a  lawful  As- 
sembly because  a  minority  could  not  form  a  quorum;  but  ti)e  court 
said  this  common  law  principle,  that  a  majority  of  the  whole  is  ne- 
cessary to  form  a  quorum,  does  not  apply,  because  the  majority  prin- 
ciple does  not  apply  in  that  religious  society.  The  constitutional  rule 
of  the  General  Assembly  is,  that  fourteen  fnay  form  a  quorum.  The 
case  of  Field  v.  Field  iully  establishes  the  principle  that  a  minority 
may  withdraw  and  organize  a  lawful  assembly,  when  a  party,  though 
a  majority,  are  attempting  illegally  and  erroneously  to  organize  an 
unlawful  assembly.  This  doctrine  of  majorities  is  much  too  little 
understood.  When  acting  in  the  ordinary  course  of  duty  and  within 
the  pale  of  their  authority,  they  are  to  prevail.  In  our  country 
majorities  have  no  right  to  do  wrong.  Suppose  the  case  of  three 
ship-owners,  can  a  majority  excind  the  other  and  take  the  whole 
ship  to  themselves?  Yes,  this  is  the  principle  contended  for  on  the 
other  side,  and  it  is  about  the  amount  of  the  excinding  acts. 

All  must  have  an  opportunity  to  vote  as  I  read  to  you  the  other 
day,  especially  in  delegated  bodies,  where  a  man  does  not  act  for 
himself  alone.  But,  gentlemen,  don't  let  us  stop  here.  I  want  to 
know  how  they  found  out  they  had  the  majority  to  sustain,  in  1838, 
this  principle  of  excision,  this  ecclesiastical  guillotine,  which  cuts 
off  without  mercy.  -  Have  we  not  shown  you  that  even  their  own 
party  could  not  all  be  brought  up  to  the  sticking  point.  Look  at 
Mr.  Phelps's  testimony.  He  says,  from  careful  examination,  thev 
would  have  stood  on  the  question  of  sustaining  these  excinding  acts 
13t)  to  140,  and  this  is  uncontradicted.  They  rely,  on  the  other 
side,  upon  the  majority  staying  with  their  Assembly;  but  this  only 
shows  that  they  sympathized  with  the  Old  School,  but  not  that  thev 
approved  of  the  excinding  principle,  or  would  have  sustained  the 
moderator  and  clerks  in  carrying  it  out,  if  the  moderator  had  put 
the  question  to  the  house.  If  there  was  to  be  a  separate  organiza- 
tion they  chose  to  go  with  the  Old  School.  What  says  Dr. 
M'Dowell.  Why  he  thought,  as  clerk  that  he  was  bound  to  do  as 
he  did.  He  was  pledged  to  it.  But  how  would  he  have  voted  in 
the  house?  What  was  his  language  in  committee?  What  was 
his  private  opinion?     So  of  others.     There  is  not  the  least  particle 


500 

of  evidence  to  contradict  Mr.  Phelps.  The  truth  is,  that  having 
got  a  maiority  in  1837  they  are  so  proud  of  it,  that  they  can't  use 
any  other  word  in  describing  themselves,  nor  any  word  but  minority 
for  the  other  party.  Their  own  pastoral  letter  of  1837  shows  that 
parties  were  about  equally  balanced.  In  that  letter  they  say, 
"What  are  called  the  Old  School  and  New  School  parties  are 
already  separated  in  fact;  in  almost  every  part  of  our  country 
where  those  parties  exist,  they  have  less  iTiinisterial  or  Christian 
communion  with  one  another  than  either  of  those  parties  have  with 
Christians  of  other  denominations ;  and  they  are  so  equally  balanced 
in  point  of  power,  that  for  years  past  it  has  been  uncertain,  until 
the  General  Assembly  was  fully  organized,  which  of  those  parties 
would  predominate  in  that  body."  Yet  they  now  claim  to  be  a 
clear  tnajority.  Suppose  they  are,  on  what  principle  can  they 
claim  to  trample  on  the  minority? 

Another  objection  is,  that  Mr.  Cleaveland  should  have  addressed 
the  chair.  This  is  a  most  extraordinary  position.  The  moderator 
determines  to  keep  every  thing  from  the  house,  a  member  rises  to 
displace  him  for  that  cause,  and  the  motion  must  be  made  to  this 
very  moderator!  It  is  too  glaringly  erroneous  to  admit  of  serious 
argument.  Why  in  all  cases  affecting  the  moderator  or  presiding 
officer,  personally,  the  miction  is  put  by  some  one  else.  Why,  if 
under  the  circumstances  of  the  case,  the  moderator  refusing  every 
thing,  thumping  with  his  hammer,  crying  out  order,  &c.,  Mr. 
Cleaveland  had  put  that  motion  to  the  moderator,  the  next  motion 
of  his  friends  should  have  been  to  send  him  to  a  mad  house.  In  the 
minutes  of  1835,  page  7,  on  the  question  of  removing  the  mode- 
rator, the  question  was  put,  not  by  the  moderator,  but  by  Dr.  Ely. 
There  is  a  case  in  the  Digest,  page  332,  in  which  the  moderator 
being  interested  in  a  question  before  the  Assembly,  withdrew,  and 
Dr.  M'Knight  took  the  chair,  without,  as  far  as  appears,  any  ques- 
tion being  put.  In  the  case  cited  from  Gray,  the  house  directed  the 
clerk  to  put  a  motion.  The  motion  that  the  clerk  put,  must  have 
been  made  and  put  by  a  member.  In  this  case,  the  moderator 
clearly  would  not  have  put  it;  it  is  ridiculous  to  suppose  he  would. 
Nor  would  the  clerks  have  put  the  question.  They  were  combined 
with  the  moderator,  and  like  him,  it  would  have  been  absurd  to  ask 
them,  to  put  the  question,  when  the  very  next  motion  was  to  remove 
the  clerks  themselves.  The  motion  was  personal  to  the  clerks  as 
well  as  to  the  moderator.  A  member  must  put  it.  It  was  the  only 
proper  course.  Really,  gentlemen,  it  seems  to  me  unnecessary  to 
answer  all  these  objections,  but  I  must  do  it  to  satisfy  my  clients, 
and  you  must  excuse  me. 

The  next  objection  is,  that  the  motion  was  not  to  appoint  a  mo- 
derator, but  that  Dr.  Beman  take  the  chair.  Now,  four-fifths  of 
the  witnesses  say,  that  the  motion  was  to  appoint  the  moderator. 
The  constitution,  however,  says,  "take  the  chair;"  and  in  common 
sense,  there  is  no  difference.  The  force  and  substance  of  the  mo- 
tion is,  to  put  another  in  the  place  of  the  moderator. 

I  come,  now,  to  the  next  objection.  The  New  School  did  not  do 
what  they  wanted  the  other  side  to  do.     After  choosing  a  mode- 


501 

rator  and  clerks,  they  did  not  repeat  ihe  same  motions  which  they 
had  previously  made.  Now  the  object  of  the  New  School  was  to 
secure  an  entire  organization  of  all  the  members;  to  get  all  on  the 
roll.  Mason  and  Gilbert,  as  soon  as  they  were  chosen,  did  add 
these  excinded  members  to  the  roll.  They  checked  from  Krebs* 
roll,  and  then  added  the  others.  They  put  them  together;  they 
considered  it  the  roll  in  their  hands,  and  it  was  the  roll.  There 
was,  therefore,  no  need  of  a  motion  to  compel  the  clerks  to  do  what 
they  were  willing  to  do,  and  actually  did.  There  was  no  motion  to 
put  Joshua  Moore  on  the  roll,  yet  Krebs  put  him  on.  So  Mason 
and  Gilbert  put  these  on  without  a  motion.  We  have  thus  their 
own  practice  to  confirm  ours.  But  they  say  we  cannot  consider  it  a 
roll,  unless  the  commissions  are  in  the  hands  of  the  clerks.  This  is 
idle,  gentlemen.  Why,  displacing  the  clerks  is  not  a  reorganization. 
It  is  only  a  continuance  of  the  old  organization.  They  took  up  the 
business  where  the  old  clerks  left  it.  Can  it  be  seriously  contended, 
that  the  house  cannot  go  on  against  a  refractory  clerk,  unless  by 
main  strength  they  take  him  by  the  shoulders,  and  force  the  papers 
from  him  1     Can  he  thus  destroy  the  body? 

The  next  objection  is,  that  these  motions  are  entirely  out  of  or- 
der. This  is  a  grand  doctrine  for  the  Old  School  members!  There 
is  some  question  as  to  what  Dr.  Elliott  called  for;  they  allege  that 
he  only  said,  "  the  next  business  was  to  appoint  a  committee  of  elec- 
tions ;"  that  is  to  say,  no  motion  can  be  made  to  compel  the  clerks 
to  do  their  duty.  Nothing  can  be  permitted  to  be  done,  the  object 
of  which  is  to  prevent  an  organization  without  the  excinded 
members.  Every  thing  must  be  in  our  power.  They  must  wait 
till  we  take  order  thereon ;  let  them  come  on  their  knees,  be  exa- 
mined on  experimental  religion,  doctrine  and  church  government. 
The  whole  was  based  on  these  excluding  acts;  and  are  we  to  be 
told  at  this  time  of  day,  in  this  land  of  law,  that  such  acts  are  valid 
and  operative?  Were  these  commissions  irregular?  No.  I  ask 
every  honest  man,  as  well  as  religious  men,  if  they  were  to  be  ex- 
cluded by  those  acts?  By  the  rule  of  the  Assembly,  the  committee 
could  not  be  appointed  till  the  roll  was  completed.  It  is  the  next 
business  after  the  house  is  thus  ready  for  business;  that  is,  after  all 
are  on  the  roll.  This  attempt  to  violate  all  right,  must  give  the 
house  the  right  to  displace  these  officers,  in  the  view  of  all  sane 
men.  Let  us  have  the  converse  of  the  proposition.  Let  us  sup- 
pose that  our  bull  had  gored  their  ox.  Suppose  sixty  Old  School 
commissioners  like  Joshua  Moore,  had  presented  themselves  to  New 
School  clerks,  who  refuse  to  put  them  on  the  roll,  and  go  on  and 
organize  partially,  by  which  means  they  get  a  preponderance, 
meaning  to  carry  their  measures,  and  allow  them  to  get  in  only  as 
the  New  School  clerks  please.  They  present  themselves,  and  say 
to  the  moderator,  that  the  clerks  had  refused  to  put  them  on  the 
roll.  Would  the  moderator  have  said,  "the  next  business  is  to  ap- 
point a  committee  of  elections?"  No,  gentlemen.  He  would  say, 
the  clerks  have  not  reported  all;  he  would  read  the  rule,  that  the 
clerks  shall  report  all  that  are  regular,  and  till  all  are  thus  reported, 


502 

the  house  is  not  ready  for    the    business    of  appointing    a    com- 
mittee of  elections. 

But  there  is  another  objection.  It  is  said  the  house  did  nothing 
wrong,  if  the  clerks  and  moderator  did.  Why,  gentlemen,  we  don't 
pretend  that  the  house  did  any  thing  wrong.  It  was  the  moderator 
and  clerks,  and  for  their  wrong  the  house  displaced  them.  If  any 
did  not  choose  to  vote,  it  is  no  matter.  And,  gentlemen,  we  go 
much  further  than  that.  Suppose  the  majority  had  voted  down  the 
propositions,  then  the  minority,  being  a  quorum,  would  have  a  right 
to  organize  on  the  true  principles,  at  the  nearest  convenient  spot, 
admitting  all  the  members.  To  say  a  delegated  body  has  power, 
by  a  majority,  to  bind  and  manacle  the  minority  hand  and  foot,  is 
against  all  law.  To  organize  an  unlawful  assembly,  is  a  matter  of 
great  importance.  It  may  become  an  assembly  de  facto.  Its  acts 
might  be  binding  till  questioned  on  direct  review.  The  minority, 
however,  must  organize  on  the  principle  of  admitting  all;  and,  in 
this  case,  if  they  had  chosen  to  come  to  Washington  Square,  to 
vote  us  down,  they  had  a  right  to  do  it,  on  questions  of  business,  but 
not  to  exclude.  But  they  never  did  so.  It  has  not  been  shown  that 
there  was  a  majority  to  do  this.  They  never  got  the  assent  of  a 
majority,  in  1838,  to  the  acts  of  1837.  They  dared  not  put  the 
motions  to  the  house.  They  determined  to  force  them  through, 
against  the  majority. 

The  next  objection,  gentlemen,  is,  that  the  question  was  not  re- 
versed. And  here  the  gentlemen  lay  much  stress  on  the  not  read- 
ing of  Cleaveland  and  Beman's  depositions.  These  depositions 
could  be  read  on  the  other  side,  and,  depend  upon  it,  if  they  con- 
tained evidence  that  the  questions  were  not  reversed,  or  any  other 
evidence  in  favour  of  the  defendants,  they  would  have  read  them. 
As  I  before  said,  there  was  the  same  reason  for  not  reading  them, 
as  for  not  reading  Dr.  Nott's,  on  the  other  side.  They  say,  too,  that 
Mr.  Cleaveland  must  know  what  he  said.  But,  according  to  their 
own  account,  he  was  so  agitated  as  not  to  be  more  likely  to  re- 
member than  others.  He  did  not  read  the  paper;  he  spoke  partly 
extempore,  and  the  substance  is  on  the  minutes. 

There  are  too  many  witnesses  who  say  the  question  was  re- 
versed, to  leave  a  shadow  of  doubt.  There  were  also  negative 
votes  from  that  quarter  of  the  house.  Dr.  Elliott  says  he  heard 
some  noes.  It  must  have  been  reversed.  Dr.  Hill,  too,  whose  tes- 
timony on  this  point  must  prevail,  says  he  heard  noes,  and  he  gives 
the  reason  for  his  remembering  it.  He  thought  the  Old  School 
would  not  vote  on  it;  if  they  did,  they  would  vote  it  down.  The 
testimony  on  this  point  is  distinct  and  abundant.  There  can  be  no 
doubt.  Witness  after  witness  says  he  heard  the  question  put,  and 
heard  noes;  but  there  was  a  majority  of  ayes.  When  a  number  of 
witnesses  say  they  did  hear,  others  saying  they  did  not  hear  do  not 
contradict  it.  It  is  a  rule  of  evidence,  that  the  affirmative  testi- 
mony prevails.  Suppose  a  man  walking  up  Chestnut  street  with  an 
umbrella  in  his  hand.  Some  persons  say  they  saw  the  umbrella, 
and  give  reasons  for  remembering  it;  others  say  they  did  not  see 
it;  can  there  be  any  doubt  whether  we  should  believe  that  the  man 
had  an  umbrella? 


503 

Another  objection  is,  that  we  should  have  waited  till  they 
had  organized,  and  then  applied  to  be  received ;  and  the  first 
counsel  on  the  other  side,  said  they  would  have  received  us,  and 
killed  the  fatted  calf  and  feasted  together.  In  the  heat  of  his 
commendable  zeal,  and  with  the  eloquence  which  we  cannot  but 
admire,  he  persuades  himself,  and  thinks  to  persuade  you,  that  if 
you  give  him  a  verdict,  still  they  will  lei  us  in  and  kill  the  fatted 
calf  for  us.  This,  too,  after  the  acts  of  1837;  the  pledging  of  the 
clerks;  their  conduct  in  1838,  even  lo  their  statistics;  after  all 
this,  if  we  could  believe  that  they  would  let  us  in,  our  credulity 
miaht  call  forth  the  exclamation  of  the  Roman  orator — 

o 

"Oh  judgment  !  thou  art  fled  to  brutish  beasts. 
And  men  have  lost  their  reason." 

It  is  also  objected,  that  there  were  two  moderators  in  noniinn- 
tion,  and  there  ought  to  have  been  a  call  of  the  roll,  and  a  division. 
Dr.  Elliot  in  nomination  !  No.  There  was  no  question  but  whether 
he  should  be  displaced.  There  was  no  other  nomination  than  Be- 
man,  and  on  their  own  principles,  the  question  need  not  be  re- 
versed. 

But  they  say  there  was  no  time  for  debate.  Well,  did  any  body 
want  to  debate  ?  Ah  !  but  Mr.  Cleaveland  prevented  it,  by  saying  he 
would  proceed  in  the  shortest  possible  time,  &c.  This,  gentlemen, 
was  only  an  apology  to  Dr.  Elliott.  It  was  saying  that  there  was 
nothing  personal  to  him,  but  if  any  had  interfered,  they  could  have 
debated.  No  one  offered  to  debate.  No  one  rose  to  debate.  Has 
any  one  of  all  this  long  list  of  Old  School  witnesses  said  he  wanted 
to  debate?  Not  one.  If  any  one  wished  to  debate,  he  should  have 
arisen  for  that  purpose,  and  an  opportunity  would  have  been  given. 

They  further  object,  that  when  Dr.  Fisher  was  appointed,  the 
rules  were  not  read  to  him.  Now,  gentlemen,  you  vi'ill  recollect 
that  the  witnesses  said  that  Dr.  Beman  did  announce  to  Dr.  Fisher 
his  election,  and  did  declare  that  he  was  to  be  governed  by  the 
rules  to  be  adopted.  You  will  attend  to  one  circumstance.  It  was 
not  formerly  the  practice  to  re-adopt  the  rules.  They  were  consi- 
dered permanent  rules.  Then  it  was  proper  to  read  the  rules  to 
the  house,  through  the  moderator.  As  soon,  however,  as  they  act- 
ed upon  the  idea  that  they  were  not  the  rules  till  they  were  adopted, 
it  ceased  to  be  proper  to  read  them.  This  old  parliamentary  prac- 
tice, that  the  rules  were  not  binding  till  they  are  re-adopted,  was  in- 
troduced on  Mr.  Breckinridge's  suggestion.  A  change  in  the  prac- 
tice of  reading  should,  of  course,  follow.  It  would  be  nonsense  to 
read  the  rules  which  are  not  rules.  But,  gentlemen,  these  small 
matters  are  of  no  importance  whatever.  It  is  idle  to  waste  your 
time  on  frivolous  points  like  these.  What  difference  does  it  make, 
whether  a  man  rise  or  sit,  in  making  a  motion,  or  whether  there 
be  a  little  noise,  or  not.  If  the  motion  is  fairly  passed,  such  mat- 
ters do  not  vitiate. 

The  next,  and  the  last  objection  is,  that  the  motion  was  not  put 
to  the  house  in  so  loud  and  distinct  a  voice  that  members  could 
vote  understandingly 


504 

Was  the  motion  distinct  and  audible?  There  are  a  host  of  wit- 
nesses whosay  it  was  loud.  Mr.  Patton,  Mr.  Gilbert,  Mr.  Norris, 
the  Episcopalian,  (by  the  way,  I  wonder  how  they  came  to  find 
him  !)  was  near  the  door  in  a  crowd,  in  the  very  nucleus  of  the  Old 
School  men,  and  one  of  their  own  witnesses;  he  said  it  was  very 
loud.  No  one  denies  it.  If  we  bring  witnesses  from  every  part  of 
the  iiouse,  who  say  they  heard  it,  it  must  have  been  audible.  Now, 
Mr.  Gilbert,  in  the  south-east  corner,  among  the  Old  School,  heard 
it.  Mr.  Elmes,  in  the  soutli-west,  heard  every  thing,  till  his  atten- 
tion was  called  to  the  Old  School  disturbance.  Mr.  Grimell  heard 
it  all,  clearly;  he  was  near  the  Old  School,  who  were  whispering. 
He  was  the  one  who  turned  to  them  and  said,  "that  was  pretty 
conduct  for  ministers."  He  is  unimpeached;  the  fact  that  Dr. 
l^hillips  and  others  did  not  notice  it,  does  not  invalidate  his  testi- 
mony. Mr.  Norris,  in  the  south-west  door,  heard;  Mr.  Dingey,  in 
the  gallery,  heard  all,  till  the  appointment  of  Fisher,  and  then  he 
was  coming  down  stairs,  and  did  not  hear  for  that  reason.  Now, 
these  witnesses  who  did  hear,  fully  establish  the  fact  that  the  motion 
was  audible.  Why  did  not  the  Old  School  brethren  hear?  Because 
of  the  noise  on  their  part  of  the  house.  The  moderator's  hammer. 
Cries  of  "shame!"  "order!"  "What  disgraceful  proceedings!" 
"Can  nothing  be  done  to  prevent  it?"  "I  have  done  all  I  can." 
(/oughing,  scraping,  &c.  It  was  very  natural  that  they  should  not 
hear.  Dr.  Phillips  only  says  he  did  not  hear.  He  found  himself 
saying,  in  an  under  tone,  "order!"  "order!"  "Can  we  not  have 
order?"  They  must  have  been  agitated  themselves,  and  could  not 
observe  it. 

They  also  went  on  and  transacted  business.  Their  own  minutes 
(page  8)  say  of  the  time  vv'hile  Mr.  Cleaveland  was  speaking :  "  Dur- 
ing which,  the  Rev.  Joshua  Moore,  from  the  Presbytery  of  Hunt- 
ingdon, presented  a  commission,  which  being  examined  by  the 
Committee  of  Commissions,  Mr.  Moore  was  enrolled,  and  took  his 
seat. 

"  It  was  then  moved  to  appoint  a  Committee  of  Elections  to 
which  the  informal  commissions  might  be  referred."  And  this  mo- 
tion Dr.  Elliott,  in  his  testimony,  says,  that  he,  as  moderator,  enter- 
tained. 

Here  was  the  reception  of  a  member,  and  a  proposition  for  a  com- 
mittee of  elections,  during  thet  imeof  Mr.  Cleaveland's  proceedings. 

Not  only  did  the  commissioners  to  the  Assembly  make  disturb- 
ance, but  Dr.  Miller  also,  a  man  of  great  mildness  and  politeness  of 
manners  and  respectability  of  character,  went  out  of  himself,  and 
though  not  a  member,  cried  out,  "  What  a  disgraceful  proceeding." 
Mr.  Breckinridge  was  twice  on  the  floor,  and  you  find  one  of  them, 
Mr.  Boardman,  vising  with  the  Pagan  maxim  in  his  mouth,  "  Whom 
God  wishes  to  destroy,  he  first  makes  mad."  He  so  far  forgot  the 
propriety  of  his  character  and  situation,  as  to  apply  this  to  his  bre- 
thren. Now  all  this  was  done,  to  prevent  what?  A  perfectly  paci- 
fic proceeding,  the  whole  object  of  which  was  to  eflect  a  legal  and 
constitutional  organization  of  the  General  Assembly.  While  they 
are  explaining  their  object,  apologising  for  their  course  to  Chris- 
tian brethren,  and  trying  to  bring  in  50,000  communicants,  200,000 


505 

members  of  congregations,  and  500  ministers,  they  are  toid  by  a 
brother,  *'your  God  wishes  to  destroy  you;  he  has  made  you  mad." 
And  this  is  said  to  his  brethren  I  They  had  worshipped  together 
and  sat  together  for  years,  but  because  they  stand  on  constitutional 
ground,  for  the  rights  of  their  brethren  and  of  the  church,  they  are 
thus  denounced.  Another  reason  for  not  hearing  was,  they  did  not 
wish  to  hear.  "  There  are  none  so  bUnd  as  those  who  do  not  wish 
to  see."  So  none  are  so  deaf  as  those  who  do  not  wisli  to  hear. 
Mr,  Breckinridge,  Wilson  and  others  say  they  did  not  try  to  hear. 
No  man  has  said  he  wanted  to  vote  and  could  not.  If  you  lake  the 
testimony  of  the  witnesses,  you  will  have  no  difficulty  in  asceriain- 
ing  why  the  Old  School  did  not  hear  and  others  did  hear, — there  is 
no  need  of  impeaching  character  or  credit. 

There  was  a  strong  sympathy  with  the  one  side  or  the  other. 
The  Old  School  having  the  opinion  which  ihey  had,  that  it  was  all 
wrong  and  disorderly,  attended  to  the  nioderator,  and  of  course  did 
net  hear  the  others.  They,  on  the  other  hand,  who  believed  it  was 
all  regular,  they  wanted  to  hear,  and  they  did  hear.  There  is  no 
reason  to  believe  the  New  School  parly  were  disorderly,  they  only 
voted  a  hearty  and  emphatic  aye,  and  rose.  Take  their  own  wit- 
ness, Professor  M'Lean,  of  the  Old  School.  He  says,  there  was 
iiot  more  disorder  than  was  necessary  for  such  a  proceeding.  The 
disorder,  he  says,  consisted  in  its  being  against  the  calls  to  order  of 
the  moderator,  that  is,  it  was,  in  his  opinioii,  out  of  order. 

But  suppose  there  was  some  disorder,  what  could  they  do?  Their 
only  course  was  to  go  back  to  the  middle  of  the  church  a  few  steps. 
They  could  not  go  forward.  The  conduct  of  the  moderator  and 
«"lerks  prevented  it,  the  resolution  of  the  trustees  prevented  it.  If  in 
the  case  in  New  York  they  might  go  into  the  street,  they  might 
surely  go  back  a  few  feet.  You  must  think,  gentlemen,  from  the 
evidence,  that  they  did  all  they  could  to  do  right,  and  preserve 
order  and  prevent  disturbance.  Suppose  some  could  not  hear. 
Why  nine-tenths  of  the  business  of  the  House  of  Representatives  is 
done  when  a  part  of  the  members  cannot  hear  from  conversation  or 
other  causes,  and  if  necessary  the  question  is  repeated.  If,  instead 
of  trying  to  put  down  the  movement,  they  had  said  they  wished  to 
hear,  the  question  would  have  been  repeated.  It  is  too  late  now  to 
say  they  did  not  hear. 

But,  gentlemen,  in  bringing  this  subject  to  a  close,  there  is  one 
remark  made  on  the  other  side,  to  which  I  will  call  your  attention. 
They  say  there  are  other  suits,  suits  against  individuals  which  ought 
to  have  been  tried  first.  If  there  be  such  suits,  gentlemen,  let  indi- 
viduals attend  to  their  own  business.  We  have  nothing  to  do  with 
them.  We  say  that  here  we  go  for  the  whole  church.  We  say 
and  contend  that  all  are  entitled.  The  other  side  say  part  are  out 
of  the  Presbyterian  Church.  That  question  could  be  easily  tried  in 
such  a  case  as  this.  We  make  that  issue,  and  if  we  had  taken  an 
individual  suit,  they  would  have  said,  why  not  bring  a  q^io  icarranto 
and  try  the  general  question.  Trover  will  not  lie.  A  mandamus 
will  not  lie,  it  is  impracticable.  A  member  one  year,  is  not  a  mem- 
ber the  next.     The  sessions  are  short.     There  could  be  no  trial. 

43 


506 

We  do  not  bring  this  suit  against  Dr.  A.  Green,  who  has  been  so 
•often  alkided  to  on  the  other  side.  If  we  succeed,  all  are  in  the 
church, — Old  School  as  well  as  New,  Dr.  Green  and  all.  We 
seek  to  exclude  no  one ;  Dr.  Green  will  be  as  before,  in  the  en- 
joyment of  all  his  ecclesiastical  rights.  It  takes  from  him  a  mere 
temporal  office,  which  would  be  belter  in  the  hands  of  a  layman. 

Gentlemen,  I  wish  to  see  it  decided,  whether  men  can  be  thus  cut 
off  and  stripped  of  their  rights.  In  Pennsylvania,  I  think,  there  can 
be  no  hesitation  as  to  the  decision,  judging  from  the  current  of  de- 
cisions heretofore.  And  I  trust  there  is  firmness  enough  in  her 
courts  and  juries,  to  pass  with  strict  impartiality  upon  the  rights  of 
the  parties  in  this  cause. 

Mr.  Wood  having  concluded  his  argument  at  an  early  hour  on 
Monday  the  25th  of  March  ;  request  was  made  to  the  Court,  on  be- 
half of  one  of  the  jurors,  that  on  account  of  sudden  and  distressing 
sickness  in  his  fatnily,  the  jury  might  be  discharged  till  to-morrow, 
before  receiving  the  charge  of  the  court. 

Judge  Rogers  said  that  he  was  ready  to  address  the  jury;  but 
that  in  view  of  the  consideration  named,  the  indulgence  could  be 
granted  with  the  consent  of  the  parties. 

The  indulgence  was  granted,  and  the  Court  adjourned. 


CHARGE  OF  THE  COURT. 

Tuesday,  March  26. 

At  the  opening  of  the  Court  this  morning,  the  Hon.  Molten  C. 
Rogers  addressed  the  jury  as  follows : 

Gentlemen  of  the  Jury, — In  the  course  of  the  remarks  which  1 
shall  make  to  you  in  relation  to  the  cause  now  to  be  submitted  to 
you,  I  shall  endeavour  to  present  all  the  points  having  a  bearing  on 
the  case.  I  shall  omit  all  mere  collateral  points  which  have  been 
introduced  by  counsel  on  either  side. 

My  anxiety  is  to  obtain  your  unbiased  opinion  on  ihe  facts  in  the 
case,  on  which  it  is  your  province  alone  to  determine. 

My  remarks  will  be  full  and  decided  on  those  points,  on  which  I 
consider  it  my  duty  to  expound  to  you  the  law  applicable  to  the 
case. 

If  in  any  views  of  the  law,  I  err,  there  will  be  no  difficulty  in 
having  that  error  corrected  before  a  higher  tribunal. 

Your  closest  attention  is  now  desired  to  the  points  in  this  deeply 
interesting  case. 

Before  the  year  1758,  the  Presbyterian  churches  in  this  country 
were  under  the  care  of  two  separate  synods  and  their  respective 
presbyteries;  the  Synod  of  New  York  and  the  Synod  of  Philadel- 
phia. 

In  the' year  1758  these  synods  were  united,  and  were  called  "the 
Synod  of  New  York  and  Philadelphia."  This  continued  until  the 
year  1788,  when  the  General  Assembly  was  formed.  The  synod 
was  then  divided  into  four  synods ;  the  Synod  of  New  York  and 


507 

New  Jersey,  Philadelphia,  Virginia,  and  the  Carolinas ;  of  these  four 
synods  the  General  Assembly  was  constituted. 

In  1803,  the  Synod  of  Albany  was  erected.  This  synod  has 
been  from  time  to  time  sub-divided,  and  the  Synods  of  Genessee, 
Geneva  and  Utica  have  been  formed. 

The  Synod  of  Pittsburgh  has  been  also  erected,  out  of  which  the 
Synod  of  the  Western  Reserve  has  been  formed. 

These  constitute  the  four  excinded  synods,  viz :  the  Synods  of 
Genessee,  Geneva,  Utica  and  the  Western  Reserve. 

The  General  Assembly  was  constituted  by  every  presbytery,  at 
their  last  stated  meeting  preceding  the  meeting  of  the  General  As- 
sembly, deputing  to  the  General  Assembly  commissioners  in  certain 
specific  proportions. 

The  Westminster  Confession  of  Faith  is  part  of  the  constitution 
of  the  Church.  The  constitution  could  not  be  altered,  unless  two- 
thirds  of  the  presbyteries,  under  the  care  of  the  General  Assembly, 
propose  alterations  or  amendments,  and  such  alterations  or  amend- 
ments were  agreed  to  by  the  General  Assembly. 

The  form  of  government  was  amended  in  1821.  The  General 
Assembly  now  consists  of  an  equal  delegation  of  bishops  and  elders 
from  each  presbytery  in  certain  proportions. 

The  judicatories  of  the  church  consist  of  the  session,  of  the  pres- 
byteries, of  synods,  and  the  General  Assembly. 

The  church-session  consists  of  the  pastor,  or  pastors,  and  ruling 
elders  of  a  particular  congregation.  A  presbytery,  of  all  the  minis- 
ters and  one  ruling  elder  from  each  congregation  within  a  certain 
district.  A  synod  is  a  convention  of  bishops  and  elders,  including, 
at  least,  three  presbyteries.  And  the  General  Assembly  of  an  equal 
delegation  of  bishops  and  elders,  from  each  presbytery,  in  the  fol- 
lowing proportions,  viz:  each  presbytery  consisting  of  not  more 
than  24  ministers,  sends  one  minister  and  one  elder;  and  each 
presbytery,  consisting  of  more  than  24  ministers,  sends  two  minis- 
ters and  two  elders;  and  in  the  like  proportion  for  every  24  minis- 
ters in  any  presbytery.  The  delegates  so  appointed,  are  styled 
Commissioners  to  the  General  Assembly. 

The  General  Assembly  is  the  highest  judicatory  of  the  Presby- 
terian Church.  It  represents,  in  one  body,  all  the  particular  churches 
of  this  denomination  of  Christians. 

In  relation  to  this  body,  the  most  important  undoubtedly  are  the 
various  presbyteries;  for,  as  was  before  said,  the  General  Assembly 
consists  of  an  equal  delegation  of  bishops  and  elders  from  each  of 
the  presbyteries.  If  the  presbyteries  are  destroyed,  the  General 
Assembly  falls,  as  a  matter  of  course,  as  there  would  no  longer  be 
any  constituent  bodies  in  existence,  from  which  delegates  could  be 
sent  to  the  General  Assembly. 

The  presbyteries  are  essential  features  in  the  form  of  government 
in  another  particular,  for  before  any  overtures  or  regulations,  pro- 
posed by  the  General  Assembly  to  be  established  as  constitutional 
rules,  can  be  obligatory  on  the  churches,  it  is  necessary  to  transmit 
them  to  all  the  presbyteries,  and  to  receive  the  returns  of  at  least  a 
majority  of  them  in  writing,  approving  thereof. 


508 

A  synod,  as  has  been  before  observed,  is  a  convention  of  bishops 
and  elders  v^'ithin  a  district,  including  at  least  three  presbyteries. 
The  synods  have  a  supervisory  power  over  presbyteries,  but  unlike 
presbyteries,  as  such  they  are  not  essential  to  the  existence  of  the 
Genernl  Assembly.  If  every  synod  in  the  United  States  were  ex- 
cinded  and  destroyed,  still  the  General  Assembly  would  remain  as 
the  hijjhest  tribunal  in  the  church.  In  this  particular  there  is  a  vital 
difference  between  presbyteries  and  synods.  The  only  connexion 
between  the  General  Assembly  and  the  synods  is,  that  the  former 
has  a  supervisory  power  over  the  latter. 

Having  thus  given  you  an  account  of  such  parts  of  the  form  of 
church  government  as  may,  in  some  aspects  of  the  cause,  be  mate- 
rial, I  shall  now  coll  your  attention  to  the  matter  in  issue. 

This  pr'oceeding  is  what  is  called  a  "  Quo  Warranto.''*  It  is  issued 
by  the  Commonwealth,  at  the  suggestion  of  James  Todd  and  others, 
against  Ashbel  Green  and  others,  to  show  by  what  authority  they 
claim  to  exercise  the  office  of  Trustees  of  the  General  Assembly  of 
the  Presbyterian  Church  in  the  United  States  of  America.  I  must 
here  remark,  that  it  is  not  only  an  appropriate,  but  the  best  method 
of  trying  the  issue  in  this  cause. 

It  is  admitted,  that  until  the  24th  of  May,  1838,  the  respondents 
were  the  rightful  trustees ;  but  it  is  contended  by  the  relators,  that 
on  that  day,  the  24th  of  May,  1838,  in  pursuance  of  the  act  of  in- 
corporation, the  General  Assembly  of  the  Presbyterian  Church 
changed  one-third  of  the  trustees,  by  the  election  of  the  relators  in 
the  place  and  stead  of  the  respondents. 

On  the  28th  of  March,  1799,  the  Legislature  of  Pennsylvania  de- 
clared Ashbel  Green  and  17  others,  (naming  them,)  a  body  politic 
and  corporate,  by  the  name  and  style  of  Trustees  of  the  General 
Assembly  of  the  Presbyterian  Church  in  the  United  States  of 
America. 

The  sixth  section  provides  that  the  corporation  shall  not,  at  any 
time,  consist  of  moi-e  than  18  persons;  whereof,  the  General  As- 
sembly may,  at  their  discretion,  as  often  as  they  shall  hold  their 
sessions  in  the  state  of  Pennsylvania,  change  one-third  in  such  man- 
ner as  to  the  General  Assembly  may  seem  proper. 

It  was  the  intention  of  the  Legislature,  by  the  act  of  incorpora- 
tion, to  provide  for  the  election  of  competent  persons,  who,  as  an 
incorporated  body,  might,  with  more  ease  and  in  a  better  manner, 
manage  the  temporal  affairs  of  the  church.  It  is  only  in  this  aspect 
that  we  have  cognizance  of  the  case. 

In  this  country,  for  the  mutual  advantage  of  church  and  state, 
we  have  wisely  separated  the  ecclesiastical  from  the  civil  power. 
The  court  has  as  little  inclination  as  authority  to  interfere  with  the 
church  and  its  government,  farther  than  may  be  necessary  for  its 
protection  and  security.  It  is  only  as  it  bears  upon  the  corpora- 
tion, which  is  the  creature  of  the  civil  power,  that  we  have  any 
right  to  determine  the  validity,  or  to  construe  the  acts  and  resolu- 
tions, of  the  General  Assembly. 

Although  neither  the  members  of  the  General  Assembly,  as  such, 
nor  the  General  Assembly  itself,  are  individually  or  aggregately 
members  of  the  corporation,  yet  the  Assembly  has  power,  from 


509 

time  to  time,  as  they  may  deem  proper,  to  change  the  trustees,  and 
to  give  special  instructions  for  their  government.  They  stand  in 
the  relation  of  electors,  and  have  been  properly  denominated  in  the 
argument,  quasi  corporate.  The  trustees  only  are  the  corpora- 
tion by  the  express  words  of  the  act  of  the  Assembly. 

Unhappily,  differences  have  arisen  in  the  church,  (the  nature  of 
which  it  is  not  necessary  for  us  to  inquire  into,)  which  have  caused 
a  division  of  its  members  into  two  parties,  called  and  known  as  the 
Old  and  New  School.  These  appellations  we  may  adopt  for  the 
sake  of  designating  the  respective  parties,  the  existence  of  which 
will  have  an  important  bearing  on  some  of  the  questions  involved 
in  this  important  cause.  It  gives  a  key  to  conduct  which  it  would 
be  otherwise  difficult  to  explain. 

The  division  continued  to  increase  in  strength  and  virulence  until 
the  session  of  1837,  when  certain  decisive  measures,  which  will  be 
hereafter  stated,  were  taken  by  the  General  Assembly,  which  at 
this  time  was  under  the  control  of  members,  who  sympathise,  (as 
the  phrase  is,)  with  the  principles  of  the  Old  School. 

At  an  early  period,  the  Presbyterian  Church,  at  their  own  sug- 
gestion, formed  unions  with  cognate  churches,  that  is,  with  churches 
whose  faith,  principles  and  practice,  assimilated  with  their  own, 
and  between  whom  there  was  thought  to  be  no  essential  difference 
in  doctrine. 

On  this  principle  a  Plan  of  Union  and  correspondence  was  adopted 
by  the  Assembly  in  1792,  with  the  General  Association  of  Con- 
necticut, with  Vermont  in  1S03,  with  that  of  New  Hampshire  in 
1810,  with  Massachusetts  in  1811,  with  the  Northern  Associate 
Presbytery  in  1802,  and  with  the  Reformed  Dutch  Church,  and  the 
Associate  Reform  Church  in  1798. 

These  conventions,  as  is  stated,  originated  in  measures  adopted 
by  the  General  Assembly  in  1790  and  1791.  The  delegates  from 
each  of  the  associated  churches  not  only  sat  and  deliberated  with 
each  other,  but  also  acted  and  voted  by  virtue  of  the  express  terms 
of  the  union. 

In  further  pursuance  of  the  settled  policy  of  the  church  to  extend 
its  sphere  of  usefulness,  in  the  year  1801,  a  Plan  of  Union  between 
the  Presbyterians  and  Congregationalisls  was  formed. 

The  plan,  which  was  devised  by  the  fathers  of  the  church  to 
prevent  alienation  and  to  promote  harmony,  was  observed  by  the 
General  Assembly  without  question  by  them,  until  the  year  1835, 
a  period  of  thirty-four  years. 

At  that  time  it  was  resolved  by  the  General  Assembly,  that  they 
deemed  it  no  longer  desirable  that  churches  should  be  formed  in 
their  Presbyterian  connexion,  agreeably  to  the  plan  adopted  by  the 
Assembly  and  the  General  Association  of  Connecticut,  in  1801. 
They,  therefore,  resolved  that  their  brethren  of  the  General  Asso- 
ciation of  Connecticut  be,  and  they  hereby  are,  respectfully  re- 
quested to  consent  that  the  said  plan  shall  be,  from  and  after  the 
next  meeting  of  that  Association,  declared  to  be  annulled.  And 
afso  resolved,  that  the  annulling  of  said  plan  shall  not  in  any  wise 

43* 


510 

interfere  with  the  existence  and  lawful  association  of  churches  which 
have  been  already  formed  on  this  plan. 

To  this  resolution  no  reasonable  objection  can  be  made,  and  if 
the  matter  had  been  permitted  to  rest  here,  we  should  not  have 
been  troubled  with  this  controversy.  It  had  not  then  occurred  to 
the  Assembly  that  the  Plan  of  Union  was  unconstitutional.  The 
resolutions  are  predicated  on  the  belief  that  the  agreement  or  com- 
pact was  constitutional.  They  request  that  the  Association  of 
^Connecticut  would  consent  to  rescind  it.  It  does  not  seem  to  have 
been  thought  that  this  could  be  done  without  their  consent.  And 
moreover,  the  resolution  expressly  saves  the  rights  of  existing 
churches  which  had  been  formed  on  that  plan, 

I  must  be  permitted  to  regret,  for  the  sake  of  peace  and  harmony, 
that  this  business  was  not  suffered  to  rest  on  the  basis  of  resolutions 
which  breathe  the  spirit  of  peace  and  good  feeling.  But  unfortu- 
nately the  General  Assembly,  in  1837,  which  was  then  under  an- 
other influence,  took  a  diflierent  view  of  the  question. 

"As  the  'Plan  of  Union,'  adopted  for  the  new  settlements,  in 
1801,  was  originally  an  unconstitutional  act  on  the  part  of  that 
Assembly — these  important  standing  rules  having  never  been  sub- 
mitted to  the  presbyteries — and  as  they  were  totally  destitute  of 
authority  as  proceeding  from  the  General  Association  of  Connecti- 
cut, which  is  invested  with  no  j)ower  to  legislate  in  such  cases,  and 
especially  to  enact  laws  to  regulate  churches  not  within  her  limits; 
and  as  much  confusion  and  irregularity  have  arisen  from  this  un- 
natural and  unconstitutional  system  of  union,  therefore  it  is  resolv- 
ed, that  the  Act  of  the  Assembly  of  1801,  entitled  a  '  Plan  of  Union/ 
be,  and  the  same  is  hereby  abrogated."     See  Digest,  pp.297 — 299. 

The  resolution  declares  the  Plan  of  Union  to  be  unconstitutionah 
1st,  because  those  important  standing  rules,  as  they  call  them,  were 
not  submitted  to  the  presbyteries;  and  secondly,  because  the  Gene- 
ral Association  of  Connecticut  was  invested  with  no  power  to  legis- 
late in  such  cases,  and  especially  to  enact  laws  to  regulate  churches 
not  within  their  limits. 

The  Court  is  not  satisfied  with  the  force  of  these  reasons,  and  does 
not  think  the  agreement,  or  Plan  of  Union,  comes  within  the  words 
or  spirit  of  that  clause  in  the  constitution  which  provides,  that  be- 
fore any  overture  or  regulations  shall  be  proposed  by  the  General 
Assembly  to  be  established  as  constitutional  rules  shall  be  obliga- 
tory on  the  churches,  it  shall  be  necessary  to  transmit  them  to  all 
the  presbyteries,  and  to  receive  the  returns  of  at  least  a  majority 
of  them  approving  thereof.  Nor  is  it,  in  the  opinion  of  the  court, 
in  conflict  with  the  constitution  before  its  amendment  in  1821, 
which  provides  that  no  alteration  shall  be  made  in  the  constitution 
unless  two-thirds  of  the  presbyteries  under  the  care  of  the  General 
Assembly  propose  alterations  or  amendments,  and  such  alterations 
or  amendments  are  agreed  to  by  the  Assembly. 

It  was  a  regulation  made  by  competent  parties,  and  not  intended 
by  either  as  a  constitutional  rule;  nor  was  it  obligatory  on  any  of 
the  Presbyterian  Churches  within  their  connexion.  Those  who 
were  competent  to  make  it,  were  competent  to  dissolve  it  without 


511 

the  assent  of  the  presbyteries,  as  such,  which  could  not  be  done, 
were  it  a  constitutional  rule,  within  the  meaning  of  the  constitution. 
Whether  one  party  may  dissolve  it,  without  the  consent  of  the 
other,  it  might  be  unnecessary  to  decide.  My  opinion  is  that  they 
can.  The  Plan  of  Union  is  intended  to  prevent  alienation,  and  to 
promote  union  and  harmony  in  the  new  settlements. 

Jt  is  not  a  union  of  the  Presbyterian  Church  with  a  Congrega- 
tional Church,  or  churches,  but  it  purports  to  be,  and  is,  a  Plan  of 
Union  between  individual  members  of  the  Presbyterian  and  Con- 
gregational churches,  in  that  portion  of  the  country  which  wiis 
then  denominated  the  New  Settlements.  It  is  advisory  and  recon)- 
mendatory  in  its  character — has  nothing  obligatory  about  it.  A 
Congregational  church,  as  such,  is  not  by  force  of  the  agreement 
incorporated  with  the  Presbyterian  Church.  It  has  no  necessary 
connexion  with  it;  for  it  is  only  when  the  congregation  consists 
partly  of  those  who  hold  the  Congregational  form  of  discipline, 
and  partly  of  those  who  hold  the  Presbyterian  form,  and  there  is 
an  appeal  to  the  presbytery,  (as  there  may  be  in  certain  cases,)  that 
the  Standing  Committee  of  the  Congregational  church,  consisting 
partly  of  Presbyterians  and  partly  of  Congregationalists,  may,  or 
shall  attend  the  presbytery,  and  may  have  the  same  right  to  sit  and 
act  in  the  presbytery  as  a  ruling  elder.  And  whatever  may  have 
been  occasionally  the  instances  to  the  contrary,  this  I  conceive  to 
be  the  obvic)US  construction  of  the  regulation.  That  part  of  the 
agreement  was  intended  as  a  safeguard,  or  protection  of  the  rights 
of  all  the  parties  to  be  ajETected  by  it,  without  any  design  to  confer 
upon  the  Standing  Committee  all  the  rights  of  a  ruling  elder. 

I  view  it  as  a  matter  of  discipline,  and  not  of  doctrine,  the  effect 
of  which  is  to  exempt  those  members  of  the  different  communions, 
who  adopted  it,  from  the  censures  of  the  church  to  which  they 
belong,  and  particularly  the  clerical  portion  of  them. 

The  Court  is  also  of  the  opinion,  that  after  an  acquiescence  of 
nearly  forty  years,  and  particularly  after  the  adoption  by  the  pres- 
byteries of  the  amended  constitution  of  1821,  the  Plan  of  Union 
is  not  now  open  to  objection.  The  plan  has  been  recognized  by  the 
presbyteries  at  various  times,  and  in  different  manners,  under  the  old 
and  amended  constitution.  It  has  been  acted  on  by  thern  and  the 
General  Assembly  in  repeated  instances,  and  is  equally  as  obliga- 
tory as  if  it  had  received  the  express  sanction  of  the  presbyteries 
in  all  the  forms  known  to  the  constitution. 

That  acquiescence  gives  right,  is  a  principle  which  we  must 
admit.  The  constitutionality  of  the  purchase  and  admission  of 
Louisiana  as  a  member  of  the  Union,  was  doubted  by  some  of  the 
wisest  heads  and  purest  hearts  in  the  country;  but  he  would  be  a 
very  bold  man,  indeed,  who  would  now  deny  that  state,  and  Missis- 
sippi, Arkansas,  and  Missouri,  to  be  members  of  the  confederation. 
In  the  memorable  struggle  for  the  admission  of  Missouri  into  the 
Union,  this  objection  was  never  taken. 

Nor  am  I  satisfied  with  the  second  reason,  that  the  General 
Association  of  Connecticut  was  invested  with  no  power  to  legislate 
in  such  cases,  and  especially  to  enact  laws  to  regulate  churches  not 


512 

■within  their  limits.  Although  the  General  Assembly  had  the  right 
to  annul  the  Plan  of  Union  without  the  assent  of  the  General  Asso- 
ciation of  Connecticut,  yet  I  must  be  permitted  to  say,  that  after 
having  acted  on  the  plan,  and  reai)ed  all  the  advantages  of  it,  it  is 
rather  discourteous,  to  say  the  least  of  it,  to  attempt  to  abrogate  it 
without  the  consent  of  the  other  party.  Ahhough  the  Association 
may  be  an  advisory  body,  yet  it  does  not  appear  that  any  difficulty 
has  been  started  by  them,  or  by  the  churches  under  their  control. 
All  parties  acquiesced  in  it  for  thirty-six  years,  and  it  would  be  too 
late  for  either  now  to  object  to  its  validity.  Nor  is  there  any  thing 
in  the  idea  that  they  have  no  power  to  regulate  churches  not  within 
their  limits.  This  is  a  matter  of  consent,  and  there  is  nothing  to 
prevent  churches  in  one  state  from  submitting  themselves  to  the 
ecclesiastical  government  of  churches  located  in  another  state. 
The  Presbyterian  Church  has  furnished  us  with  repeated  examples 
of  this  kind. 

So  far  from  believing  the  Plan  of  Union  to  be  unconstitutional,  I 
concur  fully  with  one  of  the  counsel,  that,  confined  within  its  legiti- 
mate limits,  it  is  an  agreement  or  regulation,  which  the  General 
Assembly  not  only  had  power  to  make,  but  that  it  is  one  which  is 
well  calculated  to  promote  the  best  interests  of  religion. 

If,  as  is  stated,  the  standing  committee  of  Congregational  churches 
have  claimed  and  exercised  the  same  rights  as  ruling  elders  in  pres- 
byteries, and  in  the  General  Assembly  itself,  it  is  an  abuse  which 
may  be  corrected  by  the  proper  tribunals;  but  surely  that  is  no 
argument,  or  one  of  but  little  weight,  to  show  that  the  Plan  of  Union 
is  unconstitutional  and  void. 

Although,  in  the  opinion  of  the  Court,  the  Assembly  have  the 
right  to  repeal  the  Plan  of  Union  without  the  consent  of  the  Gene- 
ral Association  of  Connecticut,  yet  it  was  unjust  to  repeal  it,  with- 
out saving  the  rights  of  existing  ministers  and  churches.  But  this 
is  a  matter,  the  propriety  of  which  they  must  determine. 

But  whether  the  Plan  of  Union  be  constitutional  or  not,  is  only 
material  so  far  as  it  is  made  the  basis  of  some  subsequent  resolu- 
tions, to  which  your  attention  will  now  be  directed. 

At  the  same  session,  and  after  failure  of  an  attempt  at  compro- 
mise, the  character  of  which  has  been  the  subject  of  much  com- 
ment, the  General  Assembly  "resolved,  that  by  the  abrogation  of  the 
Plan  of  Union  of  1801,  the  Synod  of  the  Western  Reserve  is,  and 
is  hereby  declared  to  be,  no  longer  a  part  of  the  Presbyterian 
Church.'"' 

"  Resolved,  That  in  consequence  of  the  abrogation  by  this  Gene- 
ral Assembly  of  the  Plan  of  Union  of  1801,  between  it  and  the  Ge- 
neral Association  of  Connecticut,  as  utterly  unconstitutional,  and 
therefore  null  and  void  from  the  beginning,  the  Synods  ofUtica, 
Geneva,  and  Genessee,  which  were  formed  and  attached  to  this 
body,  under  and  in  execution  of  said  Plan  of  Union,  be,  and  are 
hereby  declared  to  be,  out  of  the  connexion  of  the  Presbyterian 
Church  in  the  United  States  of  America,  and  that  they  are  not,  in 
form  or  in  fact,  an  integral  portion  of  said  church." 


513 

These  resolutions  refer  only  in  name  to  the  four  synods,  and  if 
we  were  called  on  for  the  construction  alone,  it  nnight  be  well 
doubted  whether  they  were  intended,  or  could  be  made  to  include, 
the  presbyteries  within  their  limits,  the  constituents  or  electoral 
bodies  of  the  General  Assembly  itself.  I  should  be  inclined,  for  the 
purpose  of  protecting  their  rights  from  a  resolution  so  penal  in  its 
character,  to  say  that  they  were  not  included,  either  in  the  spirit 
or  the  words  of  the  resolution.  But  this  construction  we  are  pre- 
vented from  giving  by  their  declarative  resolution.  It  is  there  in 
effect  said,  that  it  is  the  purpose  of  the  General  Assembly  to  de- 
stroy the  relations  of  all  said  synods  and  all  their  constituent  parts 
to  the  General  Assembly  and  to  the  Presbyterian  Church  in  the 
United  States.  In  the  fourth  resolution  it  is  declared,  that  any  pres- 
bytery within  the  four  synods,  being  strictly  Presbyterian  in  doc- 
trine and  order,  who  may  desire  to  be  united  with  them,  are  hereby 
directed  to  make  application,  with  a  full  statement  of  their  case,  to 
the  next  General  Assembly,  which  will  take  proper  order  thereon. 

There  is  no  mistaking  the  character  of  these  resolutions.  It  is 
an  immediate  dissolution  of  all  connexion  between  the  four  synods 
and  all  their  constituent  parts,  and  the  General  Assembly.  They 
are  destructive  of  the  rights  of  electors  of  the  General  Assembly. 
The  connexion  might  be  renewed,  it  is  true,  by  each  of  the  presby- 
teries making  application  to  the  next  General  Assembly,  but  they 
are  at  liberty  to  accept  or  refuse  them,  provided  they,  the  General 
Assembly,  deem  them  strictly  Presl)yterian  in  doctrine  and  order. 
As  they  had  the  right  to  admit  them,  they  had  the  right,  also,  to 
refuse  them,  unless,  in  their  opinion,  they  were  strictly  Presbyterian 
in  doctrine  and  order. 

By  these  resolutions,  the  commissioners,  who  had  acted  with  the 
General  Assembly  up  to  that  time,  were  deprived  of  their  seats.  At 
the  same  time,  four  synods,  with  twenty-eight  presbyteries,  were 
cut  off  from  all  connexion  with  the  Presbyterian  Church.  The 
Genera!  Assembly  resolved,  that  because  the  Plan  of  1801  was 
unconstitutional,  those  synods  and  their  constituent  parts  are  no 
longer  integral  parts  of  the  Presbyterian  Church. 

You  will  observe,  that  I  have  already  said  the  Plan  of  Union  is 
constitutional.  That  reason  therefore  fails.  They  have  resolved 
that  it  is  not  only  unconstitutional,  but  that  it  is  null  and  void  from 
the  beginning.  Instead  of  a  prospective,  they  have  given  their  reso- 
lutions a  retrospective  effect,  the  injustice  of  which  is  most  manifest. 

But  admitting  that  the  Plan  of  Union  is  unconstitutional,  null  and 
void,  from  the  beginning,  I  cannot  perceive  what  justification  that 
furnishes  for  the  excinding  resolutions.  The  infusion  of  Congrega- 
tionalists  with  the  presbyteries,  or  the  General  Assembly  itself,  does 
not  invalidate  the  acts  of  the  General  Assembly.  They  had  a  right, 
notwithstanding  the  charter,  which  recognizes  elders  and  ministers 
as  composing  the  Presbyterian  Church,  to  perform  the  functions 
committed  to  them  by  the  constitution.  And  among  them  to  esta- 
blish and  divide  synods,  to  create  presbyteries,  as  in  their  judgment 
the  exigencies  of  the  church  might  demand. 

Accordingly,  we  find  that  the  four  synods,  and  all  the  presbyte- 


514 

ries  attached  to  them,  have  been  formed  since  the  year  1801.  The 
Assembly  creates  the  synods,  and  the  synods  the  presbyteries. 
Sometimes  the  Assembly  creates  the  presbyteries — a  course  pur- 
sued with  some  of  the  presbyteries  which  have  been  excinded. 
They  have  been  established  since,  but  this  is  no  evidence  that  the 
four  excinded  synods  were  formed  and  attached  to  the  General  As- 
sembly under,  and  in  execution  of,  the  Plan  of  Union.  The  com- 
pact, as  has  been  before  observed,  was  intended  for  a  different  pur- 
pose, and  imposed  on  the  Presbyterian  Church  no  obligation  to 
admit  churches  formed  on  the  plan,  as  members.  It  was  a  volun- 
tary act,  and  not  the  necessary  result  of  the  agreement;  nor  does 
it  appear  that  the  presbyteries  were  formed  and  incorporated  with 
the  church  on  any  other  terms  or  conditions  than  other  presbyte- 
ries, who  were  in  regular  course  taken  into  the  Presbyterian  con- 
nexion. 

Rut,  gentlemen,  when  resolutions  of  so  unusual  a  character,  so 
condemnatory,  and  so  destructive  of  the  rights  of  electors,  the  con- 
stituents of  the  Assembly  itself,  are  passed,  we  have  a  right  to 
require  that  the  substantial  forms  of  justice  be  observed.  But  so 
far  from  this,  the  General  Assembly,  in  the  plenitude  of  its  power, 
has  undertaken  to  exclude  from  all  their  rights  and  privileges 
twenty-eight  presbyteries,  who  are  its  constituents,  without  notice, 
and  without  even  the  form  of  trial.  By  the  resolutions,  the  com- 
missioners, who  had  acted  as  members  of  the  General  Assembly 
for  two  weeks,  were  at  once  deprived  of  their  seats.  Four  synods, 
twenty-eight  presbyteries,  five  hundred  and  nine  ministers,  five 
hundred  and  ninety-nine  churches,  and  sixty  thousand  communi- 
cants, were  at  once  disfranchised  and  deprived  of  their  privileges 
in  this  church. 

This  proceeding  is  not  only  contrary  to  the  eternal  principles  of 
justice,  the  principles  of  the  common  law,  but  it  is  at  variance  with 
the  constitution  of  the  church. 

This  is  not  in  the  nature  of  a  legislative,  but  it  is  a.  judicial  pro- 
ceeding to  all  intents  and  purposes.  It  is  idle  to  deny  that  the  pres- 
byteries within  the  infected  districts,  as  they  are  called,  were  treated 
as  enemies  and  oflTenders  against  the  rules,  regulations,  and  doc- 
trines of  the  church.  If  there  is  any  thing  that  a  man  values,  it  is 
his  religious  rights. 

And  of  this  opinion  were  the  General  Assembly  themselves;  for, 
only  a  few  days  before,  they  came  to  the  following  resolutions  : 

"  Resolved,  1.  That  the  proper  steps  be  now  taken  to  cite  to  the 
bar  of  the  next  Assembly,  such  inferior  judicatories  as  are  charged 
by  common  fame  with  irregularities. 

"2.  That  a  special  committee  be  now  appointed  to  ascertain 
"what  inferior  judicatories  are  thus  charged  by  common  fame,  pre- 
pare charges  and  specifications  against  them,  and  to  digest  a  suita- 
ble plan  of  procedure  in  the  matter,  and  that  said  committee  be 
requested  to  report  as  soon  as  practicable." 

Nothing  further  appears  to  have  been  done  in  this  matter  in  the 
General  Assembly,  for,  after  failure  of  the  attempt  at  compromise, 


515 

they  appear  to  have  discovered  a  much  more  expeditious,  if  not  a 
more  agreeable  method  of  eflecting  their  object. 

■I  have  said  that  excinding  the  presbyteries  without  notice,  and 
without  trial,  was  not  only  contrary  to  the  common  law,  but  it  was 
contrary  to  the  constitution  of  the  church.  And  it  is  only  necessary 
to  open  the  book  of  discipline  to  see  how  very  careful  the  fathers  of 
the  church  have  been  to  secure  to  the  accused  a  full,  fair  and  im- 
partial trial. 

Notice  is  given  to  the  parties  concerned,  at  least  ten  days  before 
the  meeting  of  the  judicatory.  The  accused  are  informed  of  the 
names  of  all  the  witnesses  to  be  adduced  against  them.  When  the 
charges  are  exhibited,  the  time,  places  and  circumstances  are 
stated,  if,  by  possibility,  they  can  be  ascertained;  citations  are  is- 
sued, signed  by  the  moderator  or  clerk,  by  order,  and  in  the  name 
of  the  judicatory. 

Judicatories  are  enjoined  to  ascertain,  before  proceeding  t'  trial, 
that  their  citations  have  been  duly  served.  And,  to  secure  a  fair 
and  impartial  trial,  the  witnesses  are  to  be  examined  in  the  presence 
of  the  accused,  who  is  permitted  to  ask  any  question  tending  to  his 
own  exculpation.  The  judgment,  when  rendered,  is  regularly  en- 
tered on  the  records  of  the  judicatory. 

If  these  proceedings,  before  judgment,  are  requisite  in  the  case 
of  the  meanest  member  of  the  church,  (the  omission  of  which,  by 
any  of  the  inferior  judicatories,  would  call  down  on  the  offenders 
the  severest  censure  of  the  General  Assembly,)  it  is  inconceivable 
that  similar  precautions  are  not  necessary  to  protect  the  rights  of 
presbyteries,  which  consist  of  many  individuals,  from  the  injustice, 
violence,  and  party  spirit  of  the  General  Assembly  itself.  Constitu- 
tions are  intended  to  protect  the  weak,  the  minority,  from  the 
injustice  of  the  majority. 

The  majority,  for  the  most  part,  are  able  to  protect  themselves. 
It  is  the  minority  that  need  protection,  and  for  this  purpose  it  is 
necessary  to  encircle  them  with  at  least  all  ihe  forms  of  justice. 

This,  as  has  been  before  observed,  is  a  judicial  act;  and  if  a 
regular  trial  had  been  had,  and  judgment  rendered,  the  sentence 
would  have  been  conclusive.  We  should  not  have  attempted  to 
examine  the  justice  of  the  proceeding;  but  inasmuch  as  there  have 
been  no  citations,  and  no  trial,  I  instruct  you,  that  the  resolutions  of 
the  General  Assembly  excinding  the  four  Synods  of  Utica,  Geneva, 
Genessee,  and  the  Western  Reserve,  are  unconstitutional,  null  and 
void. 

The  judgments  of  all  courts,  whether  ecclesiastical  or  civil,  whe- 
ther of  inferior  or  superior  judicatories,  are  absolutely  void  when 
rendered  without  citations,  and  without  trial,  and  without  the  oppor- 
tunity of  a  hearing. 

But  admitting  this  to  be  in  the  nature  of  a  legislative  proceeding, 
still  it  is  void ;  for  I  deny  the  right  of  any  legislature  to  deprive  an 
elector  of  his  right  to  vote,  either  with  or  without  trial. 

This  is  a  power  which  can  only  be  exercised  by  a  judicial  tribu- 
nal, who  act  under  the  sanction  of  an  oath,  who  examine  witnesses 


516 

on  oath,  and  who  conform  to  all  the  rules  of  evidence  established  by 
the  usages  of  the  law. 

If  the  Legislature  of  Pennsylvania  should  dare,  by  resolution  or 
otherwise,  to  deprive  one  of  you,  gentlemen,  of  your  right  as  an 
elector,  it  would  be  the  duty  of  the  Court  to  declare  such  an  act 
null  and  void.  I  am  unable  to  distinguish  the  difference  between 
the  two  cases. 

Whether  the  General  Assembly  are  the  proper  tribunal,  in  the 
first  instance,  for  the  trial  of  offences,  or  whether  the  presbyteries 
are  amenable  to  their  judicatories,  in  this  or  any  other  mode,  it  is 
unnecessary  to  decide;  as  the  Court  are  clearly  of  the  opinion,  that 
it  they  have  the  right,  it  must  be  exercised  with  the  same  rules  and 
regulations  which  are  applicable  to  the  inferior  judicatories. 

Personal  process  in  each  case  may  be  "  tedious,  agitating  and  trou- 
blesome in  the  highest  degree  ;"  but  it  is  obviously  not  impossible. 
jMor  does  it  strike  me  as  impossible  to  devise  a  plan  under  the  con- 
stitution to  correct  heresy  and  schism,  without  resort  to  personal 
process  in  each  case.  But  if  it  were  so,  this  is  an  excuse,  but  it  is 
no  justification  of  the  excinding  resolutions. 

Offenders,  according  to  the  rules  of  the  church,  may  be  brought 
before  a  judicatory  by  common  fame.  But  I  perceive  no  power 
given  to  convict  on  common  fame. 

You  will  remark,  gentlemen,  that  the  presbyteries,  by  the  consti- 
tution of  the  church,  are  the  electors  of  the  General  Assembly. 
Their  right  of  representation  has  been  taken  away  without  trial, 
without  the  examination  (as  far  as  we  know)  of  a  single  witness. 

Whether  these  presbyteries  have  Congregational  churches  in  their 
connexion,  is  not  now  material.  It  is  possible  that  had  a  trial  been 
had,  that  point,  which  is  deemed  so  important,  might  have  been  dis- 
proved. At  any  rate,  it  would  seem  a  singular  reason  for  dissolv- 
incr  a  whole  presbytery,  that  one  church  was  contaminated  with 
false  and  heretical  doctrines,  or  doctrines  not  strictly  Presbyterian  ; 
that  a  whole  presbytery  should  be  ejected,  because  a  single  church 
was  governed  without  the  benefit  of  ruling  elders.  It  would  be  a 
reason,  perhaps  a  good  one,  for  cutting  off  that  church  from  the 
Presbyterian  connexion,  but  none  for  casting  out  the  whole  presby- 
tery. *  And  this,  gentlemen,  would  be  particularly  severe  on  the 
members  and  congregations,  when  the  fact  was  known  at  the  time 
the  presbytery  was  created  that  such  connexion  did  exist. 

If,  however,  after  having  condemned  this  (as  it  is  called)  unnatu- 
ral connexion,  the  presbyteries  should  obstinately  continue  to  adhere 
to  it,  then  they  would  justly  expose  themselves  to  the  severest  cen- 
sures of  the  church.  But  whether  there  is  any  mode  known  to  the 
constitution,  by  which  a  presbytery  can  be  deprived  of  the  right  of 
representation  on  the  floor  of  the  General  Assembly,  is  a  point 
which  is  not  necessary  to  the  case,  and  which  I  shall  not  undertake 
to  decide. 

J  have  been  requested  by  the  respondents'  counsel  to  instruct 
you,  that  the  introduction  of  lay  delegates  from  Congregational  es- 
tablishments into  the  judicatories  of  the  Presbyterian  Church,  was  a 
violation  of  the  fundamental  principle  of  Presbyterianism,  and  a 


517 

conlradiclion  of  the  Act  of  the  Legislature  of  Pennsylvania,  incor- 
porating the  Trustees  of  the  church:  that  any  act  permitting  such 
introduction  would  therefore  have  been  void,  although  submitted  to 
the  presbyteries.  As  an  abstract  question  on  this  point,  I  give  an 
affirmative  answer,  although,  gentlemen,  I  am  unable  to  see  the 
bearing  it  has  on  the  matter  at  issue  in  this  cause. 

You  have  already  seen  that  the  Court  is  of  the  opinion,  that  the 
excinding  resolutions  are  unconstitutional,  null  and  void  ;  yet  this 
did  not  of  itself  dissolve  the  General  Assembly.  The  General  As- 
sembly was  dissolved  only  at  the  termination  of  its  sessions.  You 
will  perceive  in  the  course  of  the  remarks  which  I  shall  have  to 
make  to  you,  that  the  acts  of  this  Assembly  will  have  an  important 
influence  on  the  proceedings  of  the  Assembly  of  1838. 

The  General  Assembly  of  the  Presbyterian  Church  is  entitled  to 
decide  upon  the  right  claimed  by  any  one  to  a  seat  in  that  body,  but 
unlike  legislative  bodies,  their  decision  is  the  subject  of  revision. 
Ecclesiastical  judicatories  are  subject  to  the  control  of  the  law. 

I  also  instruct  you,  that  a  jMandamus  would  not  reach  the  case, 
for  before  the  remedy  could  be  applied,  the  General  Assembly 
would  be  dissolved,  and  it  would  be  impossible  to  foresee  whether 
the  next  Assembly  would  persist  in  their  illegal  and  unconstitutional 
course  of  conduct.  You  will  recollect  that  the  commissioners  are 
elected  a  short  time  before  the  meeting  of  the  General  Assembly, 
and  that  that  body,  which  sits  but  a  feu  weeks  for  the  transaction 
of  business,  is  dissolved,  and  a  new  General  Assembly  is  called  at 
the  termination  of  the  sessions. 

Having  thus  disposed  of  the  proceeding  of  the  General  Assembly 
of  1837,  we  will  now  direct  our  attention  to  the  acts  of  1838.  It 
will  perhaps  conduce  to  a  proper  understanding  of  the  somewhat 
extraordinary  proceedings  which  then  took  place,  to  advert  to  the 
practice  of  the  General  Assembly  in  times  of  less  excitement  and 
interest  than  existed  on  that  occasion. 

After  the  business  of  the  Assembly  is  finished,  the  General  As- 
sembly is  dissolved,  and  another  General  Assembly  is  directed  to 
be  chosen  in  the  same  manner,  to  meet  at  a  time  and  place  desig- 
nated by  the  Assembly. 

The  moderator,  or  in  case  of  his  absence,  another  member  ap- 
pointed for  the  purpose,  opens  the  next  meeting  with  a  sermon  ;  he 
is  directed  to  hold  the  chair  till  a  new  moderator  be  chosen.  As 
til  is  is  for  the  purpose  of  organization,  it  is  not  necessary  that  he 
be  a  member,  nor  is  it  necessary  that  the  clerks  should  be  mem- 
l)ers,  who  are  requested  to  attend  for  the  same  purpose. 

^y  the  practice  of  the  Assembly,  in  pursuance  of  a  regulation  for 
that  purpose,  the  staled  and  permanent  clerks  are  a  standing  com- 
mittee on  commissions.  To  them  are  submitted  the  commissions 
of  members;  they  decide  on  them  in  the  first  place,  and  if  unex- 
ceptionable in  form  or  substance,  they  are  enrolled  as  members  of 
the  house  :  if  exceptionable,  they  report  them  as  such  in  a  sepa- 
rate list.  The  moderator,  after  divine  service,  opens  the  session 
with  prayer.  He  takes  his  seat  as  moderator,  and  proceeds  to  or- 
ganize the  house.     The  first  business  in  order  is  the  report  of  the 

44 


518 

clerks,  who  are  ihe  Committee  on  Commissions,  who  make  a  report 
stating  on  the  roll  those  who  are  members,  and  designating  either  in 
the  roll,  or  in  a  separate  list,  those  whose  commissions  have  been 
examined  and  found  defective  either  in  form  or  in  substance. 

The  next  business  in  order  is  to  appoint  a  committee  on  elections 
from  the  list  of  members  who  have  been  enrolled. 

To  that  committee  are  referred  the  commissions  of  such  persons 
as  may  claim  seats,  whose  commissions  have  been  examined  and 
rejected. 

It  is  usual  to  appoint  the  committee  on  elections  on  the  morning 
of  the  first  day  of  the  session,  and  they,  unless  in  cases  of  difficulty, 
report  to  the  house  in  the  afternoon,  and  the  house  decides  upon  the 
propriety  of  the  report.  It  would  seem  also  to  be  the  practice,  that 
when  a  commissioner  has  omitted  to  hand  in  his  commission  to  the 
clerks,  before  the  meeting  of  the  Assembly,  he  may  do  so  in  the  As- 
sembly, and  the  Committee  of  Commissions  may  add  his  name  to 
the  roll  of  members. 

After  the  house  is  organized,  they  proceed  to  the  choice  of  a 
moderator,  and  stated  and  permanent  clerks,  to  preside  over  their 
deliberations,  and  to  keep  their  records  during  their  session. 

You  will  observe  that  I  am  speaking  of  the  rules  of  practice  in  the 
sessions  of  1837  and  1S38. 

As  the  church  increased  in  numbers,  and,  I  may  add  without 
giving  offence,  after  the  spirit  of  contention  increased  also  in  the 
same  or  a  greater  ratio,  the  simplicity  of  the  ancient  practice  gradu- 
ally changed.  The  changes  have  been  stated  with  great  clearness 
by  one  of  our  venerable  fathers,  but  as  we  have  to  do  with  existing 
rather  than  ancient  rules,  it  is  not  necessary  for  me  to  notice  them. 
The  jury  will  recollect  that  the  Court  has  decided  that  the  ex- 
cinding  resolutions  of  the  General  Assembly  of  1837,  were  uncon- 
stitutional, null  and  void. 

It  results  from  this  opinion,  that  the  commissioners  from  the 
presbyteries  within  the  bounds  of  these  synods,  had  the  same  right 
to  seats  in  the  General  Assembly  as  the  members  from  other  pres- 
byteries within  the  jurisdiction  of  the  Assembly,  and  were  liable  to 
be  dealt  with  by  them  in  the  same  manner  as  commissioners  from 
other  presbyteries. 

It  was  under  these  circumstances  they  presented  themselves,  with 
commissions  in  proper  form,  to  Mr.  Krebs  and  Dr.  M'Dowell,  the 
clerks  of  the  former  Assembly.  They  not  only  rejected  their  com- 
missions, but  refused  to  put  their  names  on  the  roll  at  all. 

I  shall  not  now  stop  to  inquire  whether  these  gentlemen  were,  or 
were  not,  pledged  to  the  course  they  thought  proper  to  pursue,  nor 
into  the  question  whether  they  were  the  judges  of  the  constitution- 
ality of  an  act  of  a  former  Assembly,  as  I  am  clearly  of  the  opinion, 
and  I  so  instruct  you,  that  they  grossly  erred  in  refusing  to  place 
their  names  on  the  list  of  rejected  applicants.  They  were  the  ccm- 
rr>ittee  on  commissions  to  whom  such  questions  are  in  the  first  place 
reierred.  It  was  their  duty  to  decide  on  the  propriety  of  the  appli- 
cation and  to  refer  the  decision  to  the  further  action  of  the  House, 


519 

by  adding  their  names  to  the  roll  of  members  whose  commissions 
had  been  examined  and  rejected. 

They  cannot  consider  commissions,  in  other  respects  regular, 
as  alien  and  outlawed,  merely  because  they  proceeded  from  pres- 
byteries that  had  been  unconstitutionally  put  out  of  the  pale  of  the 
church  without  citation  and  without  trial. 

It  is,  therefore,  the  opinion  of  the  Court,  that  in  this  there  was  a 
palpable  violation  of  the  rights  of  the  proscribed  commissioners. 
And  this,  gentlemen,  was  the  second  error  committed,  and  which 
led  to  the  scene  of  disorder  which  ensued,  so  little  creditable  to  a 
Christian  Assemoly. 

After  the  moderator,  Dr.  Elliott,  had  taken  the  chair.  Dr.  Patton 
addressed  the  chair,  and  stated  that  he  had  certain  resolutions  to 
offer.  The  moderator  decided  that  he  was  out  of  order,  that  the 
first  business  was  the  report  of  the  clerks,  who,  you  will  recollect, 
"were  the  committee  on  commissions. 

Dr.  Patton  stated  that  his  motion  or  resolution  had  reference  to 
the  formation  of  the  roll,  that  it  was  his  intention  to  make  his  motion 
and  have  the  question  taken  without  debate.  The  moderator  said 
the  clerks  were  proceeding  with  their  report.  Dr.  Patton  reminded 
the  moderator  that  he  had  the  floor  before  the  clerks.  The  mode- 
rator still  decided  he  was  out  of  order,  whereupon  Dr.  Patton  re- 
spectfully appealed  from  the  decision  of  the  chair.  The  moderator 
decided  that  the  appeal  was  out  of  order,  and  stated  as  a  reason  for 
the  decision,  that  there  was  no  House  to  which  ihe  appeal  could  be 
taken. 

The  Court  is  of  the  opinion  that  the  decision  of  the  moderator 
was  correct,  for  the  reason  given  by  him.  It  is  a  rule  of  the  As- 
sembly that  no  persons  shall  be  permitted  to  vote  unless  they  are 
enrolled,  and  until  the  report  of  the  committee  on  commissions  it 
cannot  be  judicially  known  who  are  members  of  the  house,  and  as 
such,  privileged  to  take  part  in  the  organization.  If,  however,  there 
■was  a  majority  for  it,  arising  from  the  absence  of  the  moderator  or 
the  refusal  of  the  clerks  to  report  the  roll,  there  would  be  no  diffi- 
culty in  organizing  the  Assembly.  The  decision  of  the  moderator 
was  correct,  if  the  reason  assigned  w^as  the  true  reason. 

After  this  disposition  of  Dr.  Patton's  motion,  the  clerks  made  a 
report,  omitting,  improperly,  as  has  been  before  stated,  the  names 
of  the  commissioners  from  the  excinded  presbyteries,  and  the  mo- 
derator announced  to  those  who  had  not  presented  their  commis- 
sions, that  now  was  the  time  to  present  them,  and  have  themselves 
enrolled.  Some  of  the  witnesses  say  that  the  moderator  announced 
that,  if  there  were  any  names  omitted,  this  was  the  time  to  present 
their  commissions.  The  one  side  say  that  this  was  a  distinct  inti- 
mation from  the  moderator  himself,  that  now  was  the  time  to  pre- 
sent the  commissions  of  the  commissioners  from  the  excinded  pres- 
byteries. The  other  say  it  included  those  only  who  had  not  presented 
their  commissions  to  the  clerks.  That  the  only  course  to  be  pursued 
as  to  those  who  had  presented  their  commissions  and  had  their  claim 
to  be  enrolled,  refused,  was  to  have  their  case  referred  to  the  com- 


520 

mittee  on  elections,  on  whose  report  only  it  would  come  properly 
before  the  Assembly. 

However  the  fact  may  be,  and  this  of  course  you  will  decide,  at 
this  time  Dr.  Mason,  a  member  whose  seat  was  uncontested,  and 
who  had  been  reported  by  the  clerks  to  the  house  as  a  member, 
moved  that  the  names  of  the  commissioners  from  the  excinded  sy- 
nods should  be  added  to  the  roll.  He  had  the  commissions  in  his 
hand,  and  at  the  time  of  the  motion,  stated  that  they  were  the  com- 
missions of  commissioners,  which  had  been  rejected  by  the  clerks. 
The  moderator  inquired  from  what  presbyteries  those  commissioners 
came.  Dr.  Mason  replied,  they  came  I'rom  the  Synods  of  Utica, 
Geneva,  Genesee  and  the  Western  Reserve.  The  moderator  de- 
clared Dr.  Mason  out  of  order,  or  said  that  he  was  out  of  order  at 
that  time.  Tiie  witnesses  differ  as  to  the  precise  expression,  but 
whatever  may  have  been  the  reason  assigned,  they  all  concur  that 
the  moderator  declared  Dr.  Mason  out  of  order.  Dr.  Mason  said, 
that  with  great  respect  for  the  chair,  he  must  appeal  from  the  deci- 
sion. The  appeal  was  seconded.  The  moderator  refused  to  put 
the  appeal,  declaring  the  appeal  to  be  out  of  order. 

In  this  stage  of  the  cause  it  is  unnecessary  to  decide  whether  the 
original  motion  was  or  was  not  out  of  order.  I  shall  put  this  part 
of  the  case  on  the  refusal  of  the  moderator  to  put  the  question  on 
the  appeal.  The  question  is  not  whether  an  appeal  may  not  be  out 
of  order,  but  it  is  whether  this  appeal  was  out  of  order.  If  the 
moderator  had  put  the  question  on  the  appeal,  it  is  possible  the 
house  might  have  decided  that  the  original  motion  was  out  of  order. 
They  might  have  thought  that  the  matter  was  properly  referable  to 
the  committee  of  elections — that  it  was  a  privileged  question;  or 
the  Assembly  might  by  possibility  have  taken  a  different  view  of 
the  question.  And  whatever  they  might  have  thought  and  decided, 
would  have  been  conclusive. 

But  by  refusing  to  put  the  question,  the  moderator  took  all  the 
power  to  himself  over  this  question.  No  reason  was  given  by 
the  moderator.  It  rested  simply  upon  his  loill.  In  the  opinion  of 
the  Court,  it  was  a  dereliction  of  duty — a  usurpation  of  authority, 
which  called  for  the  censure  of  the  house.  He  could  not  then  aU 
lege,  as  he  had  done  on  a  former  occasion,  that  there  was  no  house 
to  which  the  appeal  could  be  taken.  At  that  time,  you  will  recol- 
lect, that  the  clerks  had  made  their  report,  and  it  was  then  ascer- 
tained what  members  had  a  right  to  vote. 

Had  the  question  on  the  appeal  been  allov^'ed,  it  could  then  have 
been  ascertained  whether  a  motion  had  been  made  for  the  appoint- 
ment of  the  committee  on  elections.  As  if  is,  it  is  doubtfid  whether 
the  motion  was  made  before  or  after  the  motion  made  by  Dr.  Mason. 

And  here,  let  me  remark,  thai  I  look  upon  the  refusal  of  the  clerks 
to  put  the  names  of  the  commissioners  on  the  roll,  and  this  refusal 
of  the  moderator  to  put  the  question  on  an  appeal  to  the  house,  as 
most  unfortunate. 

If  the  excitement  did  not  then  commence,  yet  it,  with  the  uproar 
and  confusion  which  ensued,  from  this  time  greatly  increased.  Af- 
ter the  refusal  of  the  moderator  to  allow  an  appeal,  the  Rev.  Miles 


521 

P.  Squier  arose  and  said,  that  he  had  presented  his  commission  to 
the  clerks,  which  they  had  refused  to  receive.  The  moderator 
asked  from  what  presbytery  he  came.  He  said  from  tlie  Presby- 
tery of  Geneva.  The  moderator  asked  if  it  was  within  the  bounds 
of  the  Synod  of  Geneva.  He  said  it  was.  The  moderator  then 
replied,  we  do  not  know  you.  The  precise  meaning  and  import  of 
these  words  has  been  the  subject  of  comment.  It  will  be  for  you 
to  give  them  such  weight  as  you  think  them  entitled  to,  in  another 
part  of  this  cause. 

And  here,  let  me  remark,  that  the  witness  had  not  a  right,  (what- 
ever injustice  he  may  have  suffered,)  either  to  speak  or  vote  on  any 
question  before  the  house.  He  had  not  been  reported  as  a  member 
by  the  clerks;  and  the  rules  of  the  General  Assembly  required,  that 
before  a  member  speak  or  vote,  he  must  be  enrolled. 

To  this  time  the  witnesses  substantially  agree  in  their  statement. 
There  was  but  little  noise,  and  but  little  confusion.  Every  person 
saw,  and  every  person  heard,  all  the  transactions  in  the  Assembly. 

And  here,  gentlemen,  it  will  be  your  solemn  duty,  respectfully, 
but  firmly,  to  decide  upon  the  conduct  of  the  moderator. 

Was  he  performing  his  duty  as  the  presiding  officer  of  the  house 
in  its  organization?  or  was  he  carrying  out  the  unconstitutional 
and  void  proceedings  of  the  General  Assembly  of  1837,  which  cut  off 
from  the  body  of  the  Presbyterian  Church,  4  synods,  28  presbyte- 
ries, 509  ministers,  and  near  60,000  communicants,  without  citation 
and  without  trial? 

I  put  the  question  to  you  because  it  is  the  opinion  of  the  Court, 
that  the  General  Assembly  has  a  right  to  depose  their  moderator, 
upon  sufficient  cause. 

This  power  is  necessary  for  the  protection  of  the  house,  other- 
wise the  moderator,  instead  of  being  the  servant  would  be  the  master 
of  the  house.  There  is  nothing  in  the  constitution  of  the  church  that 
restricts  or  impairs  the  right. 

It  applies  to  all  moderators,  whether  moderators  for  the  session, 
or  moderators  for  organization.  The  right  is,  perhaps,  less  ques- 
tionable in  the  latter,  than  in  the  former  case.  He  is  a  ministerial 
as  well  as  a  judicial  officer. 

Nor  do  I  think  that  they  are  restrained  in  their  choice  to  a  mode- 
rator of  a  former  year,  who  may  be  present.  That  rule  applies  only 
to  ordinary  cases,  when  the  moderator  of  the  last  year  is  not  in  at- 
tendance, or  is  unable,  from  some  physical  reason,  to  discharge  the 
duties  of  the  office.  It  does  not  apply  to  the  peculiar  and  extraor- 
dinary circumstances  of  this  case. 

The  deposition  of  a  moderator,  and  the  election  of  another  in 
his  place,  it  appears,  is  not  without  precedent  in  the  history  of  the 
church. 

There  is  one  thing  certain,  that  the  deposition  of  a  moderator, 
and  the  election  of  another,  if  in  other  respects  regular,  will  not  of 
itself  vitiate  the  organization. 

After  Mr.  Squier  had  taken  his  seat,  upon  the  emphatic  declaration 
of  the  moderator,  "  we  do  not  know  you,"  Mr.  Clcaveiand  arose. 
Mr.  Cleaveland  held  in  his  hand  a  paper,  from  which  he  read,  at 

44* 


522 

the  same  time  accompanying  it  with  remarks  not  on  the  paper.  It 
is  not  distinctly  in  evidence  what  he  did  say,  but  in  substance  it  was 
perhaps  ihis  : 

That  as  the  commissioners  to  the  General  Assembly  of  1838, 
from  a  large  number  of  presbyteries,  had  been  refused  their  seats, 
and  as  we  have  been  advised  by  counsel  learned  in  the  law,  that  a 
constitutional  organization  of  the  Assembly  must  be  secured  at  this 
time  and  in  this  place,  he  trusted  it  would  not  be  considered  as  an 
act  of  discourtesy,  but  merely  a  matter  of  necessity,  if  we  now  pro- 
ceed to  organize  the  General  Assembly  of  1838,  in  the  fewest 
words,  the  shortest  time,  and  with  the  least  interruption  practicable. 

Mr.  Cleaveland  then  moved  that  Dr.  Beman,  of  the  Presbytery  of 
Troy,  be  moderator,  or,  as  some  of  the  witnesses  say,  that  he  take 
the  chair.  The  motion  being  seconded,  the  question  was  put  by 
Mr.  Cleaveland,  and  was  carried,  as  the  witnesses  for  the  relators 
say,  by  a  large  majority,  and  by  this  they  mean  that  a  large  majo- 
rity of  voices  voted  in  the  alHrmative.  The  question  w-as  reversed, 
and,  as  the  same  witnesses  say,  there  were  some  voices  coming 
from  the  south-west  corner  of  the  church,  who  voted  in  the  negative. 
This  is  denied  by  the  respondents. 

Dr.  Beman,  who  was  sitting  in  a  pew,  the  locality  of  which  has 
been  described  to  you,  stepped  into  the  aisle  and  called  the  house  to 
order.  A  motion  was  then  made  that  Dr.  Mason  and  Mr.  Gilbert 
be  appointed  clerks.  There  being  no  others  put  in  nomination,  the 
question  was  put  by  the  moderator.  Dr.  Beman,  in  the  affirmative 
and  negative,  and  there  was  a  majority  of  voices  in  their  favour. 

Dr.  Beman  then  stated,  that  the  next  business  in  order  was  the 
election  of  a  moderator.  A  member  nominated  Dr.  Fisher,  and  no 
other  person  being  in  nonnination,  the  question  was  put  affirmatively 
and  negatively,  and  Dr.  Fisher  was  elected  by  a  large  majority  of 
voices.  There  were  no  negative  votes  on  this  nomination;  several 
of  the  witnesses  say  he  was  unanimously  elected. 

Dr.  Beman  then  announced  the  election  of  Dr.  Fisher  as  mode- 
rator, and  said,  he  should  govern  himself  by  the  rules  which  might 
be  hereafter  adopted. 

Dr.  Fisher  stepped  into  the  aisle,  moved  towards  the  north  end  of 
the  church,  and  called  for  business;  and  Dr.  Mason  and  Mr.  Gilbert 
were  chosen  clerks,  no  others  being  put  in  nomination. 

Dr.  Beman  stated  that  some  difficulties  had  been  made  by  the 
trustees  about  the  occupation  of  the  church  in  which  they  were 
then  sitting.  To  avoid  difficulty,  a  motion  was  made  to  adjourn  to 
meet  forthwith  at  the  lecture-room  in  the  First  Presbyterian  Church. 
The  question  was  taken  on  the  motion,  and  was  decided  in  the  af- 
firmative, there  being  no  votes  in  the  negative.  The  result  of  this 
vote  was  announced  by  Dr.  Fisher,  who  then  stated,  that  if  there 
were  any  commissioners  who  had  not  presented  their  commissions, 
they  might  then  and  there  attend  for  that  purpose.  The  members 
of  the  house  then  repaired  to  the  lecture-room  of  the  First  Presby- 
terian Church,  proceeded  with  their  business,  and  on  the  24th  of 
May,  1838,  elected  the  relators  trustees,  in  the  place  and  stead  of 
the  respondents. 


523 

This  is  the  relators'  case,  and  here  I  will  direct  your  attention 
to  some  of  the  points  which  have  been  raised  by  the  respondents' 
counsel. 

The  respondents  contend,  that  Mr.  Clcaveland  had  no  right  to 
put  the  question.  They  object,  also,  to  the  time  and  manner  of 
putting  tlie  question.  Under  one  or  other  of  these  points  I  will  en- 
deavour to  include  the  question  which  has  been  raised,  and  which 
has  been  argued  with  such  force  and  with  such  a  variety  of  illus- 
trations. 

Had  Mr.  Cleaveland  a  right  to  put  this  question?  It  must  be  con- 
ceded, that  unless  he  was  authorized  to  take  the  sense  of  the  house, 
the  members  were  not  bound  to  vote  upon  it.  In  ordinary  cases,  it 
is  usual  for  a  member  who  moves  a  question,  to  put  it  in  writing, 
and  deliver  it  to  the  speaker,  who,  when  it  has  been  seconded,  pro- 
poses it  to  the  house,  and  the  house  are  then  said  to  be  in  posses- 
sion of  the  question.  But  this,  the  relatois  say,  is  not  an  ordinary 
question,  but  one  of  a  peculiar  nature.  They  allege,  that  the  mo- 
derator had  shown  gross  partiality  and  injustice  in  the  chair;  that 
he  was  engaged  in  a  plan  or  scheme  to  carry  out  the  unconstitu- 
tional and  void  acts  of  1837,  which  deprived  certain  commissioners 
of  their  seats;  that  this  authorized  the  house  to  displace  him,  and 
to  elect  another  to  discharge  the  duties  which  he  failed  or  was  un- 
willing to  perform.  If  this  were  so,  of  which  you  are  the  judges, 
Mr.  Cleaveland  had  a  right  to  take  the  sense  of  the  house  on  the 
propriety  of  the  moderator's  conduct.  It  would  be  worse  than 
useless  to  require  him  to  put  the  question  on  his  own  deposition,  for 
this  the  house  were  authorized  to  believe  he  would  refuse  to  per- 
form, as  he  had  failed  in  the  performance  of  his  duty  before.  The 
law  compels  no  person  to  do  a  vain  or  nugatory  thing.  The  law 
maxim  is, '' Lex  neminem  cogit  ad  vana,  seu  impossihilia."  Nor, 
gentlemen,  was  it  necessary  that  it  should  be  taken  by  clerks,  if 
they,  as  well  as  the  moderator,  were  engaged  in  the  same  plan,  to 
deprive  members  of  seals  to  which  they  were  justly  and  constitu- 
tionally entitled.  It  is  the  opinion  of  the  Court,  that  a  member, 
although  not  an  officer,  is  entitled  to  put  a  question  to  the  house  in 
such  circumstances. 

The  motion  which  Mr.  C'leaveland  made,  after  explaining  his  ob- 
ject, was  either  that  Dr.  Beman  be  moderator,  or  that  Dr.  Beman 
be  called  lo  the  chair.  It  is  of  no  consequence  in  which  form  the 
motion  was  made.  They  are  substantially  the  same.  The  motion 
amounted  to  this:  that  Dr.  Elliott,  who  occupied  the  chair,  should 
be  deposed,  and  that  Dr.  Beman  should  be  elected  chairman  and 
moderator  in  his  stead.  It  was  a  pertinent  question,  easily  under- 
stood, and  not  calculated  to  mislead  the  dullest  member  of  the 
Assembly.  It  was  in  proper  form  and  in  proper  time :  for,  gentle- 
men, it  was  not  necessary  to  precede  it  by  a  motion  that  the  house 
should  now  pr(»ceed  to  the  choice  of  a  moderator.  All  these  requi- 
sites are  substantially  comprised  in  the  motion  which  was  made. 
There  was  nothing  in  the  question,  or  in  the  manner  of  putting  it, 
which  was  disorderly,  or  which  should  have  led  to  disorder.  Mr 
Cleaveland  put  the  question  to  the  house,  which,  under  certain  cir- 


524 

cumstances,  of  which  I  have  already  said  you  are  the  judges,  he 
had  a  right  to  do.  In  the  course  of  his  remarks,  he  turned  himself 
partly  round  from  the  moderator;  but  this,  so  far  as  any  point  of 
law  is  involved,  is  of  no  sort  of  consequence.  It  is  also  contended 
by  the  respondents,  that  the  claim  of  members  to  seats,  according 
to  the  standing  order  of  the  house,  was  referable  to  the  committee 
on  elections,  and  further,  that  the  house  cannot  enter  into  business 
until  the  organization  is  complete.  The  latter  point  the  Court  an- 
swers in  the  negative.  There  is  no  doubt  the  house  may  elect  a 
moderator,  although  the  seats  of  some  of  the  members  are  contest- 
ed. In  general,  they  would  prefer  to  await  the  report  of  the  com- 
mittee on  elections;  but  this  would  be  a  matter  of  discretion.  The 
right  to  seats  would  be  as  well,  if  not  better  decided,  after  the  house 
was  organized  by  the  election  of  a  moderator,  as  when  it  was  in  its 
inchoate  or  incipient  state.  Such  an  objection  would  not  vitiate  the 
organization,  whatever  cause  there  might  be  on  the  part  of  those 
who  had  been  deprived  of  seats,  to  complain  of  the  precipitation  of 
the  Assembly  in  proceeding  to  business,  particularly  if  done  with  a 
view  of  preventing  them  from  partaking  in  the  business. 

In  deciding  on  the  first  point,  and  others  which  have  been  raised 
by  the  respondents,  it  is  necessary  to  advert  to  the  nature  of  the 
questions  themselves. 

Dr.  Mason  moved  that  the  names  of  certain  members  who  had 
been  unconstitutionally  and  unjustly  deprived  of  seats  in  the  As- 
sembly, should  be  added  to  the  roll.  The  motion  of  Mr.  Cleave- 
land,  and  the  subsequent  resolutions  or  motions,  were  the  conse- 
quences of  the  decision  of  the  moderator,  that  Dr.  Mason's  motion 
was  out  of  order,  and  the  refusal  of  the  moderator  to  allow  an  ap- 
peal to  the  house.  The  right  of  members  was  unjustly  invaded,  and 
from  this  moment  it  became  a  question  of  privilege,  which  over- 
rides all  other  questions  whatever.  A  question  of  privilege  is  always 
in  order,  to  which,  privileged  questions,  such  as  the  appointment  of 
a  committee  of  elections,  must  give  way.  The  cry,  therefore,  of 
"  order,"  from  the  moderator,  or  from  any  member  whatever,  under 
such  circumstances,  would  be  disorderly.  Two  inconsistent  rights 
cannot  exist  at  the  same  time,  and  it  is  obvious  that  if  a  member, 
or  the  moderator,  may  put  a  stop  to  a  proceeding  which  involves 
in  it  the  conduct  of  the  moderator  himself  in  the  discharge  of  his 
high  functions,  and  a  question  of  privilege,  by  the  cry  of  order,  it 
would  be  an  easy  and  effectual  mode  of  destroying  the  rights  of 
members  in  any  deliberative  assembly.  It  is  usual,  when  it  is  in- 
tended to  prevent  a  member  from  proceeding  with  a  motion,  to  rise 
to  order,  and  a  requisition  is  then  made  by  the  moderator  that  the 
member  take  his  seat.  It  is  the  opinion  of  the  Court,  that  Dr.  Ma- 
son had  the  right  to  make  his  motion  before  the  appointment  of  the 
committee  on  elections.  Indeed,  I  know  of  no  other  mode  of  get- 
ting this  question  before  the  committee  on  elections,  except  by 
bringing  it  before  the  house,  who  might  either  decide  it  themselves, 
or,  if  they  thought  proper,  refer  it  to  that  committee,  in  whose  re- 
port it  would  again  come  before  the  house.  In  this  point,  I  wish 
you  distinctly  to  understand,  that  it  is  the  opinion  of  the  Court,  and 


525 

that  I  so  instruct  you,  that  if  you  beHeve  that  the  conduct  of  the 
moderator  and  clerks  was  the  result  of  a  preconcerted  plan  with  a 
portion  of  the  members  to  carry  out  the  unconstitutional  and  void 
acts  of  1837,  which  deprived  the  members  from  certain  presbyteries 
of  seats  in  the  Assembly,  then,  in  this  particular,  the  requisitions  of 
the  law  have  been  substantially  complied  with. 

That  the  fact  that  Mr.  Cleaveland  put  the  question,  instead  of  the 
moderator,  the  cries  of  order  when  this  was  in  progress,  the  omis- 
sion of  some  of  the  formula  usually  observed  when  there  is  no 
contest  and  no  excitement,  such  as  standing  in  the  aisle,  instead  of 
taking  the  chair  occupied  by  the  moderator,  not  using  the  usual 
insignia  of  office,  putting  the  question  in  an  unusual  place,  and  the 
short  time  consumed  in  the  organization  of  the  house,  and  three  or 
more  members  standing  at  the  same  time,  will  not  vitiate  the  organ- 
ization, if  you  should  be  of  the  opinion  that  this  became  necessary 
from  the  illegal  and  improper  conduct  of  the  adverse  party. 

It  is  a  singular  point,  gentlemen,  that  this  part  of  the  respondents' 
case  rests  upon  standing  rules  which  were  not  then  in  existence. 
You  will  recollect,  that  each  Assembly  adopted  its  own  rules;  in- 
deed, both  the  relators  and  respondents  have  appealed  to  these  rules. 
I  will  remark,  that  the  roll  of  members  reported  by  Mr.  Krebs  and 
Dr.  M'Dowell  was  the  roll  of  the  house.  As  such,  it  was  virtually 
in  the  possession  of  the  clerks  afterwards  chosen,  provided  they 
were  regularly  and  duly  elected.  It  is  the  opinion  of  the  Court  that 
the  existence  of  a  house  competent  to  perform  all  the  functions  of  a 
General  Assembly,  does  not  depend  on  the  observance  or  nonob- 
servance  of  the  standing  order  of  the  house.  You,  however,  must 
take  this  opinion  with  the  qualification  that  you  believe  that  the 
house  had  been  substantially  organized  for  the  transaction  of  bu- 
siness; that  you  should  believe  that  the  deviation  from  the  ac- 
customed course  was  the  necessary  result  of  a  preconcerted 
plan  unconstitutionally  to  exclude  the  members  from  the  ex- 
cinded  presbyteries  from  their  seats  in  the  Assembly.  And 
here,  gentlemen,  let  me  request  your  particular  attention  to  the 
point  in  issue.  The  relators  say  that  they  are  trustees  regularly 
appointed  by  the  General  Assembly  of  the  Presbyterian  Church.  In 
other  words,  they  affirm  that  the  house  which  assembled  in  the  lec- 
ture-room of  the  First  Presbyterian  Church  was  the  General  As- 
sembly of  the  Presbyterian  Church.  This  is  an  affirmative  propo- 
sition, which  the  relators  are  bound  to  support. 

The  question  is  not  which  is  the  General  Assembly,  but  whether 
they  are  the  General  Assembly,  and  as  such  had  a  right  to  elect 
the  relators  trustees.  This  allegation  the  relators  must  sustain  to 
your  satisfaction,  otherwise  your  verdict  must  be  in  favour  of  the 
respondents. 

The  respondents  strenuously  deny  that  the  portion  of  brethren 
who  assembled  in  the  First  Presbyterian  Church  are  the  General 
Assembly.  On  this  point,  both  parties,  the  relators  and  respondents, 
have  put  themselves  upon  the  country;  and  you,  gentlemen,  are 
that  country. 

Let  me  now  briefly  call  your  attention  to  the  relators'  case.    The 


526 

ffloderator,  Dr.  Elliott,  proceeded  to  organize  the  house.  The  clerks, 
Mr.  Krebs  and  Dr.  M'Dowell,  reported  to  the  house  the  roll  of 
members,  omitting  those  who  were  not  entitled  to  seats.  Dr.  Pat- 
ton  offered  a  resolution  on  the  formation  of  the  roll.  This  motion 
was  declared  by  the  moderator  to  be  out  of  order;  also  his  appeal 
was  declared  to  be  out  of  order.  Dr.  Mason  then  moved  that  the 
names  of  the  members  from  the  presbyteries  within  the  excinded 
synods  should  be  added  to  the  roll.  This  motion  was  declared  by 
the  moderator  to  be  out  of  order.  An  appeal  from  that  decision 
was  demanded,  which  was  also  declared  to  be  out  of  order.  On 
motion  of  Mr.  Cleaveland,  the  former  moderator  was  deposed  for 
sufficient  cause,  and  Dr.  Beman  was  elected  moderator,  and  Mr. 
Gilbert  and  Dr.  Mason  were  elected  clerks.  After  organiza- 
tion. Dr.  Fisher  was  elected  moderator,  and  Mr.  Gilbert  and 
Dr.  Mason  elected  clerks  for  the  Assembly.  The  Assembly 
being  thus  organized  by  the  appointment  of  officers,  adjourned 
to  meet  forthwith  at  the  lecture-room  of  the  First  Presbyte- 
rian Church,  and  accordingly  met  in  pursuance  of  the  adjourn- 
ment, and  on  the  24th  of  May,  18.38,  in  due  form,  elected  the 
relators  trustees.  This,  gentlemen,  is  a  summary  of  the  plaintiffs' 
case;  and  if  the  facts  are  as  stated,  your  verdict  should  be  render- 
ed in  favour  of  the  relators. 

The  respondents  deny  that  the  portion  of  brethren  who  assembled 
in  the  First  Presbyterian  Church,  are  the  General  Assembly. 

Their  objection,  in  addition  to  the  points  which  have  been  alrea- 
dy stated,  is,  that  there  was  not  a  full  and  free  expression  of  the 
opinion  of  the  house. 

They  allege  that  the  various  motions  for  the  appointment  of 
moderator  and  clerks,  and  for  the  adjournment,  were  not  carried 
by  a  majority  of  the  house. 

It  is  hardly  necessary  to  observe  that  spectators  had  no  right  to 
Tote,  nor  had  members  not  enrolled  by  the  clerks,  although  entitled 
to  seats,  a  right  to  vote.  But  notwithstanding  this,  it  is  the  opinion 
of  the  Court,  that  if,  after  deducting  those  who  voted  and  were  not 
entitled  to  vote,  there  was  a  clear  majority  in  favour  of  several 
motions,  this  irregularity,  or,  if  you  please,  something  worse,  would 
not  vitiate  the  organization.  The  presuinption  is,  that  none  but 
qualified  persons  voted ;  but  there  is  proof  that  some  voted  who 
were  not  enrolled,  yet  this  of  itself  will  not  destroy  the  relators' 
right  of  action.  You,  gentlemen,  will,  in  the  first  place,  inquire 
whether  there  was  a  majority  of  affirmative  voices  of  members 
entitled  to  a  vote. 

If  there  was  not,  there  is  an  end  of  the  question,  and  your  verdict 
must  be  in  favour  of  the  respondents. 

But  if  there  was  a  majority,  you  will  further  inquire  whether  the 
question  on  the  several  motions  was  reversed. 

If  they  were  not  reversed,  your  verdict  must  be  in  favour  of  the 
respondents;  for  in  that  case  it  is  very  clear  the  members  had  no 
opportunity  of  showing  their  dissent  to  several  motions  or  proposi- 
tions which  were  submitted  to  them. 


527 

These,  gentlemen,  are  questions  of  fact  for  your  decision.  I  will 
content  myself  with  referring  to  the  evidence  and  the  arguments  of 
the  counsel,  and  at  the  same  time  observing  to  you  that  it  is  your 
duty  to  reconcile  the  testimony  of  your  case,  and  with  one  other 
observation,  that  affirmative  testimony  is  more  to  be  relied  on  than 
negative  testimony. 

And  here,  gentlemen,  I  wish  you  distinctly  to  understand,  that  it 
is  the  majority  of  those  who  were  entitled  to  vote,  and  who  actually 
voted,  that  is  to  be  counted  on  the  various  questions  which  were 
submitted  to  the  house.  I  wish  you  also  to  understand,  that  it  is 
the  majority  of  members  that  had  been  enrolled,  that  must  determine 
this  question.  When  there  is  a  quorum  of  members  present,  the 
moderator  can  only  notice  those  who  actually  vote,  and  not  those 
who  do  not  choose  to  exercise  their  privilege  of  voting.  "  When- 
ever," says  Lord  Mansfield,  "electors  are  present,  and  don't  vote 
at  all,  they  virtually  acquiesce  in  the  decision  of  those  who  do." 

And  with  this  principle,  agrees  one  of  the  rules  of  the  General 
Assembly  itself,  which  must  be  familiar  to  every  member. 

"  Members  (30th  rule,)  ought  not,  without  weighty  reasons,  to  de- 
cline voting,  as  this  practice  might  leave  the  decision  of  very  in- 
teresting questions  to  a  small  proportion  of  the  judicatory.  Silent 
members,  unless  excused  from  voting,  must  be  considered  as  ac- 
quiescing with  the  majority." 

This  is  not  only  the  doctrine  of  the  common  law,  of  the  written 
law,  as  you  have  seen,  but  it  is  the  doctrine  of  common  sense;  for 
without  the  benefit  of  this  rule,  it  would  be  almost  impossible,  cer- 
tainly very  inconvenient,  to  transact  business  in  a  large  delibera- 
tive assembly. 

Of  this  rule,  gentlemen,  we  have  had  very  lately  a  most  memo- 
rable instance.  The  fundamental  principles  of  your  government 
have  been  altered;  a  new  constitution  has  been  established  by  a 
plurality  of  votes;  forty  thousand  electors,  who  deposited  their  votes 
for  one  or  other  of  the  candidates  for  governor,  did  not  cast  them 
at  all  on  that  most  interesting  and  important  of  all  questions.  But 
notwithstanding  this,  the  amended  constitution  has  been  proclaimed 
by  your  executive,  and  recognized  by  your  legislature  and  by  the 
people,  as  the  supreme  law  of  the  land.  This,  gentlemen,  has  been 
stigmatized  as  a  technical  rule  of  law,  a  fiction  and  intendment  in 
law.  It  is  sufficient  for  us,  gentlemen,  that  it  is  a  rule  of  law.  We 
must  not  be  wiser  than  the  law  ;  for  if  we  attempt  this,  we  endanger 
every  thing  we  hold  dear;  our  life,  our  liberty,  our  property. 

Nor,  gentlemen,  can  we  know  anything  of  any  fancied  equity  as 
contradistinguished  from  the  law.  The  law  is  the  equity  of  the  case, 
and  it  must  be  so  considered  under  the  most  awful  responsibility, 
by  this  court  and  this  jury.  In  my  opinion,  a  court  and  jury  can 
never  be  better  employed  than  when  they  are  vindicating  the  safe 
and  salutary  principles  of  the  common  law. 

But  the  respondents  further  object  that  the  design  of  the  New 
School  brethren  was  not  to  organize  a  General  Assembly  according 
to  the  forms  prescribed  by  the  constitution,  but  that  they  intended, 


528 

and  it  was  so  understood  by  them,  to  effect  an  ex  parte  organiza- 
tion, with  a  view  to  a  peaceable  separation  of  the  church.  If  this 
was  the  intention,  and  was  so  understood  at  the  time,  the  house 
which  assembled  in  the  First  Presbyterian  Church,  cannot  be  re- 
cognized as  the  General  Assembly,  competent  to  appoint  trustees 
under  the  charter.  Having  chosen  voluntarily  to  leave  the  church, 
they  can  no  longer  be  permitted  to  participate  in  its  advantages  and 
privileges.  If  a  member,  or  a  number  of  individuals,  choose  to 
abandon  their  church,  they  must  at  the  same  time  be  content  to  re- 
lincjuish  all  its  benefits. 

But  this  is  a  question  of  fact,  which  you  must  decide.  In  this 
part  of  the  case,  the  burthen  of  proof  is  thrown  on  the  respondents. 
They  must  satisfy  you  that  such  was  the  intention  of  the  New- 
School  party,  in  organizing  the  house,  and  adjourning  to  the  First 
Presbyterian  Church.  But  granting  that  the  motion  of  Mr.  Cleave- 
land  was  in  order,  that  Drs.  Beman  and  Fisher,  and  the  clerks  had 
a  majority  of  votes,  that  the  intention  was  to  organize  the  General 
Assembly,  and  that  they  did  not  intend  an  ex  parte  organization,  the 
respondents  say  that  such  was  the  precipitation  and  haste  of  these 
proceedings,  their  extraordinary  and  novel  character,  the  noise,  tu- 
mult and  confusion,  that  they  and  the  other  members  of  the  house 
had  no  opportunity  of  hearing  and  voting,  if  they  had  wished  to  do 
so,  and  that  therefore  this  is  an  attempt  at  organization,  which  is 
null  and  void. 

It  is  very  certain,  that  it'individual  members  of  a  deliberative  as- 
sembly, by  trick  and  artifice,  by  surprise,  noise,  tumuli  and  confu- 
sion, carry  such  a  question  as  this,  it  ought  not,  it  cannot  be  re- 
garded. The  members  must  have  an  opportunity  to  debate,  to  vote 
if  they  desire  it,  and  for  this  reason  it  is,  the  negative  question 
must  be  put,  and  that  the  several  questions  must  be  reversed. 

It  will  be  for  you  to  say,  whether  the  members  had  this  opportu- 
nity.    To  this  part  of  the  case,  I  request  your  particular  attention. 

If  you  believe  that  the  several  motions  were  made  and  reversed, 
that  they  were  carried  by  a  majority  of  affirmative  voices,  what- 
ever may  be  your  opinion  of  the  relative  strength  of  the  two  parties 
in  the  Assembly,  your  verdict  must  be  for  the  relators.  I  hold  it  to 
be  a  most  clear  proposition,  that  silent  members  acquiesce  in  the 
decision  of  the  majority.  It  is  of  no  sort  of  consequence  for  what 
reason  they  were  silent;  whether  from  a  previous  determination, 
or  otherwise.  The  efl'ect  is  the  same,  provided  they  had  an  oppor- 
tunity of  hearing  and  voting  on  the  question.  It  is  not  necessary 
that  all  should  hear  or  vote. 

If  persons  who  are  members  of  an  assembly,  by  surprise,  by 
noise,  or  violence,  carry  such  a  question,  such  a  vote  cannot  be  con- 
sidered as  the  deliberate  sense  of  the  assembly;  but  when  members 
are  aware  of  the  nature  of  the  proceedings,  and  choose  to  treat 
them  with  contempt,  or  to  interrupt  the  business  themselves,  by 
stamping,  noise,  talking,  cries  of  order,  or  shame!  shame!  or  re- 
questing silence  with  a  view  to  interruption,  or  attending  to  other 
business,  when  they  ought  to  be  attending  to  this,  they  cannot  be 
permitted  afterwards  to  allege  that  they  had  no  opportunity  to  vote. 


529 

They  cannot  take  advantage  of  their  own  wrong,  or  their  own  folly. 
]n  such  a  case,  their  silence,  or,  if  you  choose,  noise,  shall  be  view- 
ed as  an  acquiescence  in  the  vote  of  the  majority.  But  when  mem- 
bers are  prevented  from  hearing  and  understanding  the  question  by 
the  noise  and  confusion,  or  by  the  indecent  haste  with  which  the 
business  is  conducted,  the  organization  is  not  such  as  can  give  it 
any  legal  validity.  It  is  of  no  consequence  whether  the  members 
are  prevented  from  voting  understandingly  on  the  question  by  the 
persons  engaged  in  conducting  the  business,  or  by  the  spectators. 
But  when  it  comes  from  the  members  of  the  other  party,  they  shall 
not  be  permitted  to  object,  when  they  themselves  are  the  causes  of 
the  difficulty. 

If  the  facts  be  so,  they  (the  members  of  the  Old  School,)  did  not 
hear,  because  they  would  not  hear;  they  did  not  vote,  because  they 
would  not  vote.  They  caused  the  disorder,  and  let  them  reap  the 
bitter  fruits  of  their  injustice.  The  court,  and  you,  gentlemen 
of  the  jury,  have  nothing  to  do  with  consequences,  with  fancied 
majorities  and  minorities,  but  with  majorities  legally  ascertained. 
We  are  placed  at  this  bar  under  an  awful  responsibility  to  do  jus- 
tice, without  regard  to  the  numerical  strength  of  the  contending 
parties. 

If  you,  gentlemen,  believe  that  the  questions  were  not  reversed, 
that  they  were  not  carried,  that  the  members  of  the  Assembly  had 
not  an  opportunity  of  hearing  and  voting  upon  them,  your  verdict 
should  be  in  favour  of  the  respondents.  But  if,  on  the  other  hand, 
you  believe  they  intended  to  organize  the  Assembly;  that  the  ques- 
tions were  severally  put;  that  the  noise,  tumult  and  confusion 
which  prevailed  in  the  Assembly,  were  the  result  of  a  preconcerted 
plan,  or  combination,  or  conspiracy  between  the  clerks,  the  mode- 
rator, and  the  members  of  the  Old  School  party,  to  au«;tain  the  un- 
constitutional and  void  resolutions  of  1837,  which  deprived  mem- 
bers of  seats  to  which  they  were  justly  entitled,  your  verdict  should 
be  in  favour  of  the  relators. 

And  here  I  do  not  wish  to  be  understood  as  having  expressed,  or 
even  intimated  an  opinion  as  to  the  facts  of  the  case.  The  facts 
are  for  you,  the  law  is  for  the  Court. 

And  now,  gentlemen,  I  entreat  you,  as  you  shall  ansicer  to  God 
at  the  great  day,  that  you  discard  from  your  minds  all  partiality,  if 
any  you  have,  fear,  favour  and  affection;  that  you  decide  this  in- 
teresting cause  according  to  the  evidence,  and  that  you  remember 
that  the  law  is  part  of  your  evidence.  The  Court,  and  you,  gentle- 
men, are  placed  at  this  bar  under  an  awful  responsibility  to  do 

JUSTICE. 

VKRDICT. 

The  jury,  after  a  short  absence,  returned  into  Court  and  rendered 
their  verdict,  which,  as  read  to  them,  and  ordered  to  be  recorded, 

is,    "THAT  THEY  FIND  THE  DEFENDANTS  GUILTY." 

Some  question  was  made  by  counsel  for  the  defendants,  in  regard 
to  the  form  of  the  verdict,  when  it  was  announced  from  the  bench, 
that  the  Chief  Justice  had  prescribed  this  as  the  technical  form  of 
45 


530 

the  verdict,  (under  the  issue  in  this  case,)  if  the  jury  should  find 
that  the  relators  were  the  trustees  of  General  Assembly;  that  is, 
that  the  Assembly  which  held  its  sittings  in  the  First  Presbyterian 
Church,  was  the  true  "  General  Assembly  of  the  Presbyterian 
Church  in  the  United  States  of  America,"  under  the  charter. 


SUPREME  COURT  IN  BANK. 

On  the  29th  of  March,  1839,  F.  tV.  Huhbell,  Esq.,  for  the  defend- 
ants, moved  the  Court  for  a  rule  on  the  plaintiffs,  to  show  cause 
why  a  new  trial  should  not  be  granted. 

The  rule  was  granted,  and  the  17lh  of  April  assigned  for  hearing 
the  argument.  The  following  papers  were  filed  by  the  counsel  for 
the  defendants. 

I.  Specification  of  Points  on  which  the  Defendants  intend  to  rely,  in 
support  of  the  Motion  for  a  JVew  Trial. 

1.  His  honour,  the  judge,  erred  in  refusing  to  permit  the  defend- 
ants' counsel  to  cross-examine  the  plaintiffs'  witnesses,  touching  a 
plan  of  action  concerted  between  these  witnesses  and  others,  pre- 
vious to  the  17th  of  May,  1838,  for  the  government,  &c.,  of  their 
conduct,  in  or  on  the  occasion  of  the  organization  of  the  General 
Assembly  of  the  Presbyterian  Church,  for  the  year  1838. 

2.  In  refusing  to  permit  the  defendants  to  give  evidence  of  the 
existence  of  the  concert,  mentioned  in  the  first  point,  and  to  explain 
the  nature  and  character  thereof. 

3.  In  not  charging  the  jury  upon  certain  points  submitted  to  him 
in  writing,  by  the  defendants'  counsel;  which  points  so  submitted, 
are  hereto  annexed. 

4.  In  refusing  to  permit  the  defendants  to  give  evidence  that  the 
churches  of  the  synods,  which  were  disowned  in  1837,  had  not  con- 
tributed to  the  funds  under  the  control  of  the  General  Assembly. 

5.  In  not  permitting  the  defendants  to  prove  the  existence  of  Con- 
gregational or  mixed  churches,  within  the  bounds  of  the  disowned 
synods,  and  in  connexion  with  those  synods. 

6.  In  not  permitting  the  defendants  to  prove: — That  many 
churches  and  ministers  had  complied  with  the  terms  by  which  the 
disowning  resolutions,  or  acts,  were  qualified:  that  they  had  ap- 
plied to  the  presbyteries  most  convenient  to  their  respective  locali- 
ties, and  had  been  admitted  into  them. 

7.  In  permitting  the  plaintiffs'  concluding  counsel,  to  read  pas- 
sages from  the  minutes  of  the  Old  School  General  Assembly  of 
1888;  which  had  not  been  given  in  evidence,  particularly  as  the 
plaintiffs  had  objected  to  the  defendants  reading  the  whole  of  these 
minutes  in  evidence,  and  this  objection  had  been  sustained  by  the 
Court. 


531 

8.  In  rejecting  the  deposition  of  Dr.  Eliphalet  Nott,  except  such 
pan  merely  as  narrated  the  transactions  that  took  place  at  the  or- 
ganization of  the  General  Assembly  of  1838. 

9.  In  charging  the  jury,  that  the  acts  of  the  General  Assembly  of 
the  Presbyterian  Church,  of  the  year  1837,  by  which  the  synods  of 
the  Western  Reserve,  Genessee,  Geneva  and  Utica,  and  their  com- 
ponent parts,  were  disowned  or  declared  to  be  no  longer  in  eccle- 
siastical connexion  with  the  Presbyterian  Church,  were  unconstitu- 
tional and  void. 

10.  In  charging  the  jury,  that  the  Plan  of  Union  (so  called,)  of 
1801,  was  constitutional. 

11.  In  charging  the  jury,  that  the  two  reasons  assigned  by  the 
General  Assembly  of  1837,  declaring  that  Plan  of  Union  to  be  un- 
constitutional, were  not  sufficient  reasons;  these  reasons  were  as 
follows,  viz : 

1st.  Because  they  were  important  standing  rules,  and  adopted 
without  being  submitted  to  the  presbyteries. 

2dly.  Because  the  General  Association  of  Connecticut  was  invested 
with  no  power  to  legislate  in  such  cases,  and  especially  to  enact 
laws  to  regulate  churches  not  within  their  limits. 

12.  In  charging  the  jury  that  said  agreement  or  Plan  of  Union, 
did  not  come  within  the  words  or  spirit  of  that  clause  of  the  constitu- 
tion of  the  Presbyterian  Church,  which  provides:  "that  before  any 
overture  or  regulation  proposed  by  the  General  Assembly  to  be  es- 
tablished as  constitutional  rules,  shall  be  obligatory  on  the  churches, 
it  shall  be  necessary  to  transmit  them  to  all  the  presbyteries,  and  to 
receive  the  returns  of  at  least  a  majority  of  them  in  writing,  ap- 
proving thereof."  Nor  was  it  (his  honour  charged  the  jury,)  in 
conflict  with  the  constitution,  before  its  amendment  in  1821,  which 
provides,  "  that  no  alteration  shall  be  made  in  the  constitution,  un- 
less two-thirds  of  the  presbyteries  under  the  care  of  the  General 
Assembly,  agree  to  alterations  or  amendments  proposed  by  the  Ge- 
neral Assembly." 

13.  In  charging  the  jury,  "  That  the  Plan  of  Union"  wa,s  a  regu- 
lation made  by  competent  parties,  and  not  intended  by  either  as 
constitutional  rules ;  nor,  was  it  obligatory  on  any  of  the  Presbyte- 
rian churches  in  their  connexion- 

14.  In  charging  the  jury,  "  That  that  part  of  the  agreement, 
(Plan  of  Union,)  which  provides  that  the  standing  committee  of  the 
churches,  consisting  partly  of  Presbyterians,  and  partly  of  Congre- 
gationalists,  may  or  shall  attend  the  presbytery,  and  may  have 
the  same  right  to  sit  and  act  in  the  presbytery,  as  a  ruling  elder, 
was  intended  as  a  safeguard  to  the  rights  of  all  the  parties  to  be  af- 
fected by  it." 

15.  In  charging  the  jury,  that  "I  view  it"  (Plan  of  Union,)  "  as 
a  matter  of  discipline,  and  not  of  doctrine;  the  effect  of  which  is  to 
exempt  those  members  of  the  different  communions  who  adopted 
it,  from  the  censures  of  the  church  to  which  they  belonged;  and 
particularly  the  clerical  portion  of  them." 

16.  In  not  permitting  the  defendants  to  prove  that  there  were,  at 
the  time  of  the  disowning  acts,  numbers  of  Congregational  churches, 


532 

and  churches  on  the  mixed  plan,  within  the  bounds  of  those  synods 
so  disowned ;  and  that  these  churches  were  represented  in  the 
presbyteries  connposing  these  synods,  by  unordained,  lay  delegates. 

17.  In  not  permitting  the  defendants  to  prove,  that  at  the  date  of 
the  disowning  acts,  there  were,  within  the  bounds  of  the  disowned 
synods,  numerous  churches  on  the  mixed  and  Congregational  plan; 
formed  under  the  Act  of  Union  of  1801,  and  connected,  by  means 
of  that  act,  with  the  Presbyterian  Church. 

18.  In  charging  the  jury,  "  That  after  an  acquiescence  of  near 
forty  years,  and,  particularly,  after  the  adoption  by  the  presbyte- 
ries, of  the  amended  constitution  of  1821,  the  Plan  of  Union  is  not 
now  open  to  objections.  The  plan  has  been  recognized  by  the 
presbyteries  at  various  times,  and  in  ditlerent  manners,  under  their 
old  and  amended  constitution.  It  has  been  acted  upon  by  them 
and  the  General  Assembly,  in  repeated  instances;  and  is  equally  as 
obligatory  as  if  it  had  received  the  express  sanction  of  the  presby- 
teries, in  all  forms  known  to  the  constitution." 

19.  In  taking  from  the  jury  the  question  of  acquiescence  by  the 
presbyteries,  in  the  Plan  of  Union  of  1801.  The  facts  of  recogni- 
tion, or  forbearance,  which  enter  into  the  idea  of  acquiescence, 
were  facts  for  the  jury.  To  support  the  position  of  acquiescence, 
it  was  necessary  that  the  presbyteries  which  were  declared  to  have 
acquiesced,  should  have  had  full  knowledge,  or  the  means  of  know- 
ledge, that  there  were  churches  and  presbyteries  formed  on  the 
Plan  of  Union,  and  claiming  rights  under  the  Plan  of  Union.  The 
existence  of  such  knowledge,  or  means  of  knowledge,  is  a  fact  for 
the  determination  of  the  jury. 

20.  In  charging  the  jury,  that  the  "  Plan  of  Union"  did  not  pro- 
vide that  the  delegates  from  standing  committees  from  mixed 
churches  under  the  Plan  of  Union  to  the  presbyteries,  should  exer- 
cise the  same  rights  as  ruling  elders  in  those  presbyteries. 

21.  In  charging  the  jury  tlat  it  was  unjust  in  the  General  As- 
sembly to  repeal  the  Plan  of  Union,  without  saving  the  rights  of  ex- 
isting ministers  and  churches. 

22.  In  charging  the  jury  that  there  had  been  acquiescence  in  the 
rights  claimed  under  the  Plan  of  Union  for  thirty-six  years;  there 
being  no  proof  that  any  of  the  churches  formed  upon  that  plan,  had 
existed  thirty-six  years. 

23.  In  charging  the  jury  in  regard  to  the  fourth  resolution;  which 
provides  the  method  by  which  churches,  ministers,  and  presbyte- 
ries, within  the  disowned  synods,  who  are  strictly  Presbyterian  in 
doctrine  and  order,  may  continue  their  connexion  with  the  General 
Assembly  and  the  Presbyterian  Church;  inasmuch  as  he  represents, 
that  it  only  provides  for  presbyteries,  and  om.its  the  provisions  in 
favour  of  churches  and  ministers. 

24.  In  charging  the  jury  that  the  resolutions  of  1837,  disowning 
the  four  synods,  were  in  the  nature  of  judicial  proceedings,  and 
that  the  presbyteries  within  the  four  synods,  were  treated  as  crimi- 
nals and  offenders  against  the  rules,  regulations,  and  doctrines  of 
the  church. 

25.  In  charging  the  jury  in  regard  to  the  resolutions  of  1837, 


533 

*'  That  the  proper  steps  be  now  taken  to  cite  to  the  bar  of  the  next 
Assembly,  such  inferior  judicatories  as  are  charged,  by  common 
fame,  with  irregularities,"  &c. ;  ihat  nothing  further  appears  to 
have  been  done  in  this  matter  in  the  General  Assembly. 

26.  In  charging  the  jury  that  the  proceedings  of  the  General  As- 
sembly of  1837,  in  regard  to  the  four  synods,  were  not,  nor  was  any 
part  of  them,  conclusive  in  this  collateral  inquiry. 

27.  In  charging  the  jury  that  to  effect  the  objects  proposed  by  the 
disowning  resolutions  of  1837,  it  was  necessary  that  citations  should 
have  issued  to  the  presbyteries  within  the  bounds  of  these  synods; 
and  that  all  other  judicial  process  prescribed  in  the  book  of  dis- 
cipline, should  have  been  resorted  to. 

28.  In  charging  the  jury,  that  the  disowning  of  these  synods  was 
depriving  electors  of  their  right  to  vote;  and  in  declaring  that  it 
was  not  distinguishable  from  an  attempt  by  the  legislature  of  Penn- 
sylvania, by  resolution,  or  otherwise,  to  deprive  one  of  the  jurors  of 
his  right  as  an  elector. 

29.  In  charging  the  jury,  that  "  The  presbyteries,  by  the  consti- 
tution of  the  church,  are  the  electors  of  the  General  Assembly;  their 
right  has  been  taken  away  without  trial,  and,  so  far  as  we  know, 
without  the  examination  of  a  single  witness." 

30.  In  charging  the  jury,  that  it  is  now  immaterial  whether  the 
presbyteries  in  the  disowned  synods  have  Congregational  churches 
in  their  connexion  or  not;  and  that  it  was  possible,  if  a  trial  had 
been  had,  that  fact  might  have  been  disproved;  "at  any  rate,  it 
would  be  a  singular  reason  for  ejecting  a  whole  presbytery,  because 
a  single  church  was  governed  without  the  benefit  of  ruling  elders." 

31.  In  charging  the  jury,  that  although  he  was  of  opinion  that 
the  introduction  of  lay  delegates  from  Congregational  Establish- 
ments, into  the  judicatories  of  the  Presbyterian  Church,  was  a  vio- 
lation of  the  fundamental  principles  of  Presbyterianism,  and  in  con- 
tradiction of  the  act  of  the  legislature  of  Pennsylvania  incorporating 
the  trustees  of  the  church;  and  that  any  act  permitting  such  intro- 
duction would  be  void,  although  submitted  to  the  presbyteries;  yet 
he  was  unable  to  see  the  bearing  of  this  proposition  on  the  matter  in 
issue  in  this  cause. 

32.  In  charging  the  jury,  that  although  the  General  Assembly  is 
entitled  to  decide  on  the  right  claimed  by  any  one  to  a  seat  in  that 
body ;  yet  that,  unlike  legislative  bodies,  their  decision  is  the  subject 
of  revision;  and  that  ecclesiastical  judicatories  are  subject  to  the 
control  of  the  law. 

33.  In  charging  the  jury,  that  a  mandamus  would  not  reach  this 
case;  for,  before  the  remedy  could  be  applied,  the  General  Assem- 
bly would  be  dissolved,  and  it  would  be  impossible  to  foresee  whe- 
ther the  next  Assembly  would  persist  in  their  illegal  and  unconsti- 
tutional course  of  conduct. 

34.  In  permitting  evidence  to  be  given  on  the  issue  joined  in  this 
case,  of  the  proceedings,  actings  and  doings  of  the  General  Assem- 
bly of  the  year  1837. 

35.  In  charging  the  jury,  "  That  the  committee  of  commissions 
grossly  erred  in  refusing  to  put  the  names  of  the  commissioners 

45* 


534 

from  the  four  synods,  on  the  list  of  rejected  applications.  It  was 
their  duty  to  decide  on  the  propriety  of  the  apphcation,  and  to  refer 
the  decision  to  the  further  action  of  the  house,  by  adding  their  names 
to  the  roll  of  members  whose  commissions  had  been  examined  and 
rejected."  "  It  is,  therefore,  the  opinion  of  the  Court,  that  in  this 
there  was  a  palpable  violation  of  the  rights  of  the  proscribed  com- 
missioners." 

36.  In  referring  it  to  the  jury  to  decide,  whether  the  proper 
course  of  those  whose  commissions  had  been  rejected  by  the  com- 
mittee of  commissions,  was  to  have  the  same  referred  to  the  com- 
mittee of  elections  or  not. 

37.  In  charging  the  jury,  "  that  Dr.  Elliott's  declining  to  put  Dr. 
Mason's  appeal,  was  a  dereliction  of  duty — a  usurpation  of  author- 
ity, which  called  for  the  censure  of  the  house;  that  he  could  not 
then  allege,  that  there  was  no  house  to  which  the  appeal  could  be 
taken.  At  that  time,  the  clerks  had  made  their  report,  and  it  was 
ascertained  what  members  had  a  right  to  vote." 

38.  In  repeatedly  staling  to  the  jury,  "that  60,000  communi- 
cants had  been  cut  off  from  the  body  of  the  Presbyterian  Church," 
ihere  not  being  any  evidence  to  that  effect, 

39.  In  committing  to  the  jury,  to  find,  whether  Dr.  Elliott  "was 
performing  his  duty  as  the  presiding  officer  of  the  house,  or  was  he 
carrying  out  the  unconstitutional  and  void  proceedings  of  the  Gene- 
ral Assembly  of  1837." 

40.  In  charging  the  jury,  "that  there  is  nothing  in  the  constitu- 
tion of  the  church,  which  restrains  or  impairs  the  right  of  the  house, 
to  depose  their  moderator  for  sufficient  cause ;  whether  he  be  mode- 
rator for  the  session  or  for  the  organization." 

41.  In  charging  the  jury,  "that  the  house  was  not  restricted  in 
their  choice  of  a  moderator,  to  a  moderator  of  a  former  year  who 
may  be  present;  that  rule  applies  only  to  ordinary  cases,  when  the 
moderator  of  the  last  year  is  not  in  attendance,  or  is  unable,  from 
some  physical  reason,  to  discharge  the  duties  of  the  office.  It  does 
not  apply  to  the  peculiar  and  extraordinary  circumstances  of  this 
case." 

42.  In  charging  the  jury,  "  that  Mr.  Cleaveland  had  a  right  to 
make  the  motion,  that  Dr.  Beman  take  the  chair — that  said  ques- 
tion need  not,  under  the  circumstances  of  the  case,  be  put  by  the 
clerks,  or  one  of  them — that  the  question  amounted  to  this,  viz.  that 
Dr.  Elliott,  who  occupied  the  chair,  should  be  deposed,  and  that  Dr. 
Beman  should  be  elected  in  his  stead — that  it  was  a  pertinent  ques- 
tion, easily  understood  and  not  calculated  to  mislead  tiie  dullest 
member  of  the  Assembly.  It  was  in  a  proper  form  and  in  a  proper 
time:  for,  gentlemen,  it  was  not  necessary,  to  precede  it  by  a  mo- 
tion, that  the  house  should  now  proceed  to  the  choice  of  a  modera- 
tor. All  things  requisite  are  substantially  comprised  in  the  motion 
which  was  made." 

43.  In  charging  the  jury,  "that  the  refusal  (f  the  moderator  to 
put  the  appeal  was  a  breach  of  privilege,  in  which  not  only  Dr. 
Mason,  but  the  whole  house  was  interested:  they  might  have  pro- 


535 

ceeded  against  him  for  a  breach  of  privilege,  or  they  might  depose 
him  on  the  ground  of  partiality  and  injustice." 

44.  In  charging  the  jury,  "  there  was  nothing  in  the  question  or 
in  the  manner  of  putting  it  which  was  disorderly,  or  which  ought 
to  have  led  to  disorder." 

45.  In  charging  the  jury,  that  "the  motion  of  Mr.  Cleaveland, 
and  the  subsequent  resolutions  or  motions,  were  the  consequence  of 
the  decision  ot"  the  moderator  that  Dr.  Mason's  motion  was  out  of 
order,  and  refusal  of  the  moderator  to  allow  an  appeal  to  the  house. 
The  right  of  members  was  unjustly  invaded,  and  from  this  moment 
it  became  a  question  of  privilege,  which  overrides  all  questions 
whatever.  A  question  of  privilege  is  alv^^ays  in  order,  to  which, 
privilege  questions  such  as  the  appointment  of  a  committee  of  elec- 
tions, must  give  way.  The  cry,  therefore,  of  "order"  from  the 
moderator  or  from  any  member  whatever,  under  such  circumstan- 
ces, would  be  disorderly." 

46.  In  charging  the  jury,  that  "  Dr.  Mason  had  the  right  to  make 
his  motion  before  the  appointment  of  the  committee  of  elections. 
Indeed,  I  know  of  no  other  mode  of  getting  this  question  before  the 
committee  of  elections,  except  by  bringing  it  before  the  house,  who 
might  either  decide  it  themselves,  or,  if  they  thought  proper,  refer 
it  to  that  committee,  on  whose  report  it  would  again  come  before 
the  house." 

47.  In  charging  the  jury,  "  that  the  fact  that  Mr.  Cleaveland  put 
the  question,  instead  of  the  moderator;  the  cries  of  "order"  when 
this  was  in  progress,  the  omission  of  some  of  the  formalities  usually 
observed  when  there  is  no  contest,  and  no  excitement;  such  as 
standing  in  the  aisle,  instead  of  taking  the  chair  occupied  by  the 
moderator;  not  using  the  usual  insignia  of  office,  &c. ;  putting  the 
question  from  an  unusual  place;  and  the  short  space  of  time  which 
was  consumed  in  the  organization  of  the  house;  and  three  or  more 
members  standing  at  the  same  time;  would  not  vitiate  the  organi- 
zation, if  you  should  be  of  opinion,  tliat  this  became  necessary,  from 
the  illegal  and  improper  conduct  of  the  adverse  party." 

48.  In  charging  the  jury,  "that  this  part  of  the  respondents'  case 
rests  upon  standing  rules  that  were  not  then  in  existence.  You  will 
recollect  that  each  Assembly  adopts  its  own  rules." 

49.  In  charging  the  jury,  "  that  the  roll  of  members  reported  by 
Mr.  Krebs  and  Dr.  M'Dowell,  was  the  roll  of  the  house.  As  such, 
it  was  virtually  in  the  possession  of  the  clerks  afterwards  chosen, 
provided  they  were  regularly  and  duly  elected." 

50.  In  charging  the  jury,  "that  the  existence  of  a  house  compe- 
tent to  perform  all  the  functions  of  the  General  Assembly,  does  not 
depend  on  the  observance  or  non-observance,  of  the  standing  orders 
of  the  house.     You  must  take  this  opinion  with  qualifications,"  &c. 

51.  In  charging  the  jury,  in  application  to  this  case,  "that  affir- 
mative testimony  is  more  to  be  relied  on,  than  negative  testimony." 

52.  In  charging  the  jury  that  the  proceedings  of  the  General  As- 
sembly of  1837,  had  any  bearing  or  operation  on  the  General  As- 
sembly of  1888,  or  that  any  design,  by  any  portion  of  the  members 
of  the  Assembly  of  1838,  to  carry  into  effect  the  acts  of  the  Assem- 


536 

bly  of  1837,  could  have  any  effect  upon  the  organization  of  1838,  or 
confer  any  rights  upon  any  person  whatever  to  violate  or  set  aside 
rules  of  order. 

53.  The  verdict  of  the  jury  is  not  a  proper  finding  upon  the  point 
in  issue  between  the  parties. 

54.  The  respondents  having  pleaded  severally,  to  the  information 
or  suggestion  filed  in  this  case,  and  having  different  defences  to  the 
same,  the  verdict  is  erroneously  given  against  them  jointly. 

55.  The  verdict  of  the  jury  is  against  lavv^  and  the  evidence. 

56.  His  Honour,  the  judge,  erred  in  not  putting  the  position  of  the 
defendants,  in  regard  to  the  design  of  the  "  New  School  party,"  fully 
to  the  jury.  The  defendants  contended,  among  other  things,  that  the 
"  New  School  party"  designed  to  form  an  organization,  in  despite  of 
and  against  the  will  of  the  majority,  however  expressed ;  and  that 
Mr.  Cleaveland's  motion  was  not  addressed  to  them,  and  had  they 
voted  negatively  on  the  same,  their  votes  would  not  have  been  re- 
garded. 

57.  In  charging  the  jury  that  the  real  state  of  the  parties  as  to 
majority  or  minority,  was  in  no  respect  to  be  regarded,  that  the 
majority  was  only  to  be  known  by  the  vote. 

(Signed,)  F.  W.  HUBBELL,  for  Defendants. 

March  29,  1839. 

II.  Additional  Specifications  of  Points,  on  which  the  Defendants  will 
rely  on  the  motion  for  a  new  trial. 

The  resolutions  adopted  by  the  General  Assembly  of  1837,  were 
within  its  jurisdiction,  as  an  ecclesiastical  tribunal,  and  were  duly 
passed;  and  they  are  not  subject  to  the  control  or  decision  of  the 
courts  of  justice. 

The  language  of  the  moderator  in  the  preliminary  Assembly  of 
1837,  in  addressing  the  I'ev.  Mr.  Squiers,  was  not  precisely  or  even 
substantially  the  language  quoted  by  the  judge. 

The  judge  erred  in  omitting  to  give  due  effect  (in  the  proceedings 
of  1838,)  to  the  fact,  that  the  members  did  not  understand,  and  could 
not  hear  ihe  propositions,  which  are  said  to  have  been  submitted  to 
them ;  and  in  pronouncing  the  call  to  order,  by  individuals  of  the 
Old  School  party,  itself  out  of  order.    , 

The  evidence  was  clear,  positive  and  unquestionable,  that  no  op- 
portunity was  given  to  the  members  who  attended  in  1838,  to  debate 
the  propositions  that  are  said  to  have  been  introduced;  yet  the  judge 
withdrew  the  attention  of  the  jury  from  the  true  point,  which  was, 
that  there  being  no  opportunity  for  debate,  whether  the  proceedings 
were  thereby  vitiated. 

The  judge  omitted  to  charge,  that  in  a  scene  of  tumult  and  dis- 
order, such  as  was  admitted  on  all  sides  to  exist,  there  was  neces- 
sarily suspension  of  effectual  measures,  and  that  any  thing  which 
occurred  at  such  a  juncture  was  without  operation  or  effect. 

The  judge  charged,  that  if  the  organization  of  the  New  School 
party  was  intended  to  be  ex  parte,  with  a  view  to  a  separation,  the 
General  Assembly  so  organized,  could  not  be  recognized,  &c.;  yet 
he  refused  to  permit  evidence  to  be  given  by  the  defendants  of  the 


537 

Circumstances  that  attended  that  organization,  and  of  the  intention 
of  the  New  School  party,  as  manifested  by  their  preliminary  acts 
and  declarations. 

The  judge  erred  in  declaring,  that  if  the  members  had  an  oppor- 
tunity of  hearing  and  voting,  the  majority  of  those  entitled  to  vote, 
and  who  actually  voted,  is  to  be  counted;  and  that  it  is  of  no  sort 
of  consequence,  for  what  reason  the  silent  members  are  silent. 
Whereas,  the  silence  may  have  proceeded  from  an  inability  to  know 
what  were  the  measures  proposed,  and  that  inability  produced  by 
the  precipitancy  and  disorder  of  the  New  School  party:  and  the 
omission  to  vote  might  have  proceeded  from  the  calls  to  "  order"  on 
the  part  of  a  presiding  officer  yet  occupying  the  chair. 

The  burthen  of  proof  rested  on  the  party  objecting  to  the  resolu- 
tions of  1837,  to  show  the  invalidity  of  these  resolutions;  every  fair 
presumption  being  in  their  favour;  yet  no  proof  whatever  was  given 
of  the  facts  alleged  in  the  protest  of  the  New  School  party,  as  suf- 
ficient to  impair  the  resolutions. 

(Signed,)  F.  W.  HUBBELL,  for  Defendants. 

III.  Points  upon  which  the  Judge  was  asked  to  charge  the  Jury. 

His  honour,  the  Judge,  is  respectfully  requested  to  charge  the 
jury  on  the  following  points: 

That  the  act  of  the  General  Assembly  of  the  Presbyterian  Church 
for  the  year  1837,  abrogating  the  Plan  of  Union  of  1801,  was  con- 
stitutional and  valid. 

That  the  act  of  that  Assembly  declaring  the  Synod  of  the  Western 
Reserve  not  to  be  a  portion  of  the  Presbyterian  Church,  was  within 
the  constitutional  powers  of  the  General  Assembly,  and,  therefore, 
conclusive;  and  not  capable  of  being  impeached  in  this  collateral 
inquiry. 

That  the  act  of  that  Assembly  declaring  the  Synods  of  Utica, 
Genessee  and  Geneva,  and  their  constituent  parts,  to  be  out  of  the 
ecclesiastical  connexion  of  the  Presbyterian  Church  of  the  United 
States  of  America,  and  that  they  are  not,  in  form  or  fact,  an  inte- 
gral portion  of  the  said  church,  was  within  the  constitutional  powers 
of  the  General  Assembly,  and,  therefore,  conclusive;  and  not  capa- 
ble of  being  impeached  in  this  collateral  proceeding. 

That  the  General  Assembly  of  the  Presbyterian  Church  is  entitled 
to  decide  upon  the  right  claimed  by  anyone  to  a  seat  in  that  body, 
or  in  other  words,  on  any  claim  of  membership. 

That  the  General  Assembly  of  1801,  being  a  representative  or 
delegated  body,  and  a  party  to  the  arrangement,  called  "the  Plan 
of  Union"  of  1801,  any  of  the  succeeding  General  Assemblies,  who 
are  affected  in  the  exercise  of  their  power  by  that  arrangement,  are 
entitled  to  declare  that  arrangement  void,  and  so  treat  it,  whenever 
it  bears  upon  any  of  the  acts  or  doings  of  these  General  Assem- 
blies; provided  the  General  Assembly  of  ISOI  exceeded  the  au- 
thority delegated  to  it,  by  entering  into  that  arrangement.  And 
this,  independently  of  the  question,  whether  the  General  Assembly's 
powers  be  judicial  or  legislative. 


538 

That  the  General  Assembly  having  the  power  to  determine  on  the 
right  or  claim  of  membership,  whenever  the  right  of  membership  is 
claimed  under  the  "  Plan  of  Union"  the  General  Assembly  has  a 
right  to  treat  that  "Plan  of  Union"  as  void,  and  to  refuse  seats  to, 
or  to  deprive  all  such  persons  of  their  seats  who  claim  under  that 
"  Plan  of  Union." 

When  the  constituent,  viz.,  a  presbytery,  is  composed  in  part  of 
materials  furnished  by  the  "  Plan  of  Union,"  or  of  other  unconstitu- 
tional materials,  or  in  other  words,  when  it  is  composed  partly  of 
unordained  lay  delegates  from  Congregational  churches,  then  the 
General  Assembly,  as  incidental  to  the  power  of  judging  of  the 
qualifications  of  those  claiming  membership,  is  entitled  to  require 
such  presbyteries  to  expurge  these  unconstitutional  materials. 

That  the  introduction  of  unordained  lay  delegates  from  Congre- 
gational Establishments  into  the  judicatories  of  the  Presbyterian 
Church,  was  a  violation  of  the  fundamental  principles  of  Presbyte- 
rianism;  and  in  contravention  of  the  act  of  the  legislature  of  Penn- 
sylvania, incorporating  the  trustees  of  this  church;  that  any  act 
permitting  such  introduction,  would  therefore  have  been  void, 
although  submitted  to  the  presbyteries. 

That  the  "Plan  of  Union"  contemplated  but  a  temporary  aid  to 
the  churches  formed  under  it,  and  guarantied  to  them  no  continued 
connexion  with  the  Presbyterian  Church,  unless  they  adopted  its 
discipline  and  form  of  government.  There  is,  therefore,  no  breach 
of  faith,  in  refusing  to  such  churches  a  further  continuance  of  con- 
nexion. 

That  the  body  which  held  its  sessions  in  the  First  Presbyterian 
Church,  in  the  spring  of  1838,  have  by  their  own  acts  acknowledged 
the  continued  existence  of  the  General  Assembly  of  1837,  up  to  its 
formal  dissolution. 

These  acts  of  acknowledgment,  are, 

1st.  By  organizing  at  the  time  and  place  fixed  by  the  decree  of 
that  body,  on  the  last  day  of  its  session. 

2dly.  By  recognising  the  validity  of  an  election  of  trustees  by  that 
body,  after  the  Synod  of  the  Western  Reserve  had  been  disowned. 

That  the  acts  of  the  General  Assembly  of  1837,  being  powerless 
to  render  void  the  organization  of  1838,  are  foreign  to  the  issue  now 
trying;  except  so  far  as  the  defendants  might  have  invoked  their 
aid,  to  explain  or  justify  the  acts  of  the  committee  of  commission- 
ers in  forming  the  roll  of  1838. 

The  General  Assembly  of  1838,  did  not  reject  the  delegates  or 
commissioners  from  the  four  disowned  synods;  and  did  not,  in  any 
wise,  recognize  or  adopt  these  disowning  acts  of  the  General  As- 
sembly of  1837. 

The  committee  of  commissions  for  the  year  1836,  possessed  the 
power,  under  the  standing  rules  of  1826,  to  determine  on  the  con- 
stitutionality of  the  commissions  presented  to  them;  and  to  refuse  to 
put  them  on  the  roll  for  that  reason.  That,  in  the  exercise  of  this 
power,  they  are  only  amenable  to  the  General  Assembly;  and  the 
propriety  of  their  decisions  can  only  be  reviewed  by  that  body. 

That,  by  the  standing  rules  of  the  General  Assembly,  (vide  Rules 


539 

of  1826,)  the  commissions  which  were  rejected  by  the  committee 
of  commissions,  must  be  referred  to  a  committee  of  elections. 

That,  by  the  same  standing  rules,  the  first  business  of  the  General 
Assembly,  after  the  Assembly  is  constituted  with  prayer,  is,  to  hear 
the  report  of  the  committee  of  commissions  on  the  roll. 

That  no  commissioner  has  a  right  to  vote,  or  otherwise  partici- 
pate in  the  business  of  the  house,  until  his  name  is  so  reported. 

That  until  such  report  is  made,  there  is  no  house  to  transact  any 
business,  or  to  entertain  any  motions  or  appeals. 

That  the  motion  of  Dr.  Patton  being  made  before  the  committee 
of  commissions  had  reported,  was  out  of  order,  irregular,  and  nuga- 
tory; as  was  likewise  his  appeal,  there  being  no  house  to  entertain 
the  motion  or  the  appeal. 

That  the  proclamation  or  call  of  the  moderator,  for  any  other 
commissions  which  had  not  been  presented  to  the  committee  of 
commissions,  was  part  of  the  process  of  forming  the  roll;  and  the 
report  of  that  committee  cannot  be  considered  as  made,  until  all 
commissioners  had  the  opportunity  afforded  by  that  proclamation, 
of  presenting  their  commissions  to  this  committee. 

That  Dr.  Erskine  Mason's  motion  was  out  of  order. 

1st.  Because  an  interruption  of  this  proclamation;  not  being  re- 
sponsive to  it,  as  the  commissions,  which  he  offered,  had  been  pre- 
sented to  the  committee  of  commissions. 

2dly.  Because  the  report  on  the  roll  was  not  complete,  until  those 
called  by  the  proclamation  of  the  moderator  had  the  opportunity  of 
being  enrolled. 

3dly.  Because  the  first  business  of  the  house,  after  the  report  of 
the  committee  of  commissions,  is,  by  the  standing  rules  of  1826,  to 
appoint  a  committee  of  elections. 

His,  Dr.  Mason's  appeal,  was  nugatory,  until  the  moderator's 
proclamation  had  been  answered  to,  and  time  had  been  given  for 
that  purpose:  for  until  then,  the  roll  was  not  completed.  Had  the 
appeal  been  put  to  the  house,  Joshua  Moore,  and  it  might  have 
been,  others  who  had  undisputed  commissions,  and  which  they 
were  in  the  act  of  presenting,  would  have  been  excluded  from 
voting  on  that  appeal. 

If  the  refusal  to  put  Dr.  Mason's  appeal  was  wrong,  it  was  a 
breach  of  that  member's  privilege;  and  the  remedy  was,  by  a  pro- 
ceeding against  the  moderator,  on  a  charge  of  breach  of  privilege. 
That  the  motion  of  Mr.  Cleaveland  can,  in  no  sense,  be  considered 
such  proceeding;  for  in  addition  to  its  want  of  form,  the  charge 
made  was  the  refusal  to  admit  the  commissioners  from  the  disown- 
ed Synods;  and  not  the  refusing  to  put  the  appeal.  If  the  modera- 
tor erred  in  declining  to  put  the  question  submitted  to  him  by  Dr. 
Mason;  it  was  a  breach  of  privilege  on  the  part  of  the  moderator, 
and  authorized  proceedings  against  him  as  in  other  cases  of  breach 
of  privilege;  but  did  not  authorize  Dr.  Mason,  or  any  other  mem- 
ber, to  assume  or  exercise  the  functions  of  the  moderator,  in  doing 
that  which  he  had  declined  to  do,  and  that  Mr.  Cleavelatid's  con- 
duct was  a  usurpation  of  those  functions,  it  belonging  to  the  moder- 
lor  alone  to  put  motions.     Mr.  Squier's  motion,  or  application,  was 


540 

properly  treated  by  the  moderator,  as  his  name  not  having  been 
enrolled,  he  had  no  stahis,  or  right  upon  the  floor  of  the  house;  he 
should  have  procured  an  enrolled  member  to  make  the  motion  for 
him. 

Mr.  Cleaveland's  motion  was  nugatory,  void,  and  a  mere  dis- 
order, which  neither  the  Assembly,  nor  any  member  thereof,  was 
bound  to  notice;  and  being  a  mere  disorder,  it  could  be  the  founda- 
tion of  no  subsequent,  regular  action,  and  that  for  many  reasons, 
viz : 

1st.  Because  there  was  no  error,  crime,  or  misconduct  in  the 
Assembly,  or  its  officers,  to  justify  it. 

2dly.  It  professed  to  proceed  on  the  false  position,  that  certain 
members  had  been  refused  their  seats. 

3dlv.  It  was  not  put  by  the  proper  officers :  i.  e.,  if  not  by  the 
moderator,  by  the  clerk. 

4lhly.  It  was  made  and  persisted  in  under  or  after  a  call  to 
order. 

Sthlv.  It  was  designed  and  intended,  and  professed  to  be  a  revo- 
lutionary motion,  organizing  a  secession. 

Gthly.  It  was  unintelligible,  from  its  indirection.  The  purpose  is 
now  said  to  be,  to  rem.ove  Dr.  Elliott,  for  a  misdemeanor  in  office ; 
but  the  motion  made,  was  to  put  Dr.  Beman  in  the  chair,  which  did 
not  express  tfie  true  purport  of  the  proceeding ;  and  was,  therefore, 
deceptious  and  misleading. 

7thly.  It  was  sudden,  unexpected  and  unusual,  and  gave  the 
members  no  opportunity  of  understanding  its  meaning,  purpose  or 
effect. 

8thly.  It  having  been  put  from  an  unusual  place,  and  not  by  an 
officer  of  the  house,  it  is  incumbent  upon  those  who  rely  upon  the 
rule,  that  silence  is  an  affirmative  vote,  to  show  that  every  member 
present  had  a  full  opportunity  of  hearing. 

9thly.  It  was  put  and  persisted  in,  after  and  during  a  motion  to 
appoint  a  committee  of  elections,  which  by  a  standing  order  or 
rule  of  the  Assembly,  was  to  be  the^rs^  business  of  the  house  after 
the  report  of  the  committee  of  commissions  on  the  roll. 

lOthly.  The  preface  by  which  it  was  introduced,  professed  to  ad- 
dress itto  a  portion  of  the  commissioners  of  the  General  Assembly, 
and  professed  to  be  an  interruption  of  proceedings  then  regularly 
jirogressing.  If  it  were  really  intended  to  be  addressed  to  the  whole 
house,  then  its  terms  were  deceptive  and  fraudulent,  and  cannot 
affect  those  who  did  not  vote  upon  the  same. 

llthly.  The  question  not  being  reversed,  or  if  reversed,  done  so 
suddenly  and  precipitately,  and  so  immediately  followed  by  another 
motion,  as  to  give  the  dissentients  no  opportunity  to  vote,  the  vote 
upon  it  can  in  nowise  be  considered  the  act  of  the  General  As- 
sembly. 

12thly.  It  being  proved  that  the  dissentients  had  a  large  majority, 
it  is  incumbent  on  the  party  seeking  to  bind  them  by  the  vote  upon 
the  question,  to  show  that  it  was  put  by  the  proper  person,  at  a  pro- 
per time,  in  a  proper  form,  and  in  distinct,  plain,  undeceptive  and 
intelligible  shape. 


541 

13lh]y.  The  rules  of  order  prescribe  that  the  question  made  by  a 
member  be  repeated  by  the  moderator  before  it  is  put,  in  order  to 
give  the  members  an  opportunity  of  understanding  it.  In  this  case, 
the  moderator  did  not  repeat  the  question,  nor  was  there  any  thin^ 
equivalent  to  it,  as  the  motion  was  stated  but  once,  and  the  question 
immediately  put  upon  the  motion. 

The  organization  under  Drs.  Beman  and  Fisher,  was  subject  to 
the  same  infirmity  as  that  from  which  they  dissented,  for  the  reso- 
lutions re-admitting  the  disowned  synods  was  not  passed  until  they 
had  elected  their  permnnent  moderator  and  clerks. 

If  the  refusal  of  Dr.  Elliott  to  put  a  motion  or  an  appeal,  autho- 
rize the  member  aggrieved  to  put  a  motion  to  the  house,  such  irre- 
gularity must  be  proportionate  to  the  exigency,  i.  e.,  the  member 
aggrieved  could  himself  put  that  motion,  (and  no  other,)  to  the 
house,  which  had  been  so  refused. 

The  moderator  of  the  Assembly  of  1837,  was  constitutionally  the 
moderator  of  1838,  until  the  moderator  for  ihat  year  was  elected  ; 
and  was  incapable  of  being  removed  until  the  moderator  of  the  year 
1838  was  elected. 

In  case  the  moderator  of  1837  was  incay»able  for  any  reason  of 
presiding  at  the  organization  of  1838,  then,  by  the  standing  rules  of 
the  Assembly,  the  last  preceding  moderator  present  is  to  preside; 
and  as  at  the  time  Dr.  Beman  was  put  in  the  chair  there  were  two 
more  recent  moderators  present,  they,  by  said  standing  rules,  were 
entitled  to  the  chair,  in  preference  to  Dr.  Beman. 

That  the  Plan  of  Union  was  always  subject  to  be  revoked  at  the 
will  of  the  General  Assembly;  either  from  the  nature  and  charac- 
ter of  the  agreement,  or  from  the  fact  that  there  was  no  reciproci- 
ty; the  General  Association  of  Connecticut  being  invested  with  no 
power  to  legislate  in  such  cases,  and  especially  to  enact  laws  to 
regulate  churches  not  within  her  limits,  (vide  minutes  of  1837, 
page  421.) 

That  said  Plan  of  Union,  by  introducing  unordained  lay  delegates 
from  Congregational  churches,  into  the  presbyteries,  which  are  the 
constituent  bodies,  violated  fundamental  provisions  of  the  constitu- 
tion of  the  Presbyterian  Church,  in  those  articles  of  the  constitution 
which  provide  that  the  churches  shall  be  governed  by  ruling  elders, 
and  shall  be  represented  in  the  presbyteries  by  ruling  elders. 

That  this  alteration  of  fundamental  articles  of  the  constitution, 
transcended  the  powers  of  the  General  Assembly,  and  could  only 
be  rendered  valid,  if  at  all,  by  the  approval  of  a  majority  of  the 
presbyteries. 

That  as  no  direct  approval  of  this  measure,  viz.  Plan  of  Union, 
was  ever  given  by  the  presbyteries,  the  same  never  having  been 
transmitted  to  them  for  their  approbation,  in  order  to  supply  this 
defect  by  long  acquiescence,  it  must  be  proved  that  the  acquiescing 
presbyteries  had  full  and  entire  knowledge  of  the  exercise  of  rights 
under  this  Plan  of  Union. 

That,  if  the  jury  believe  that  a  majority  of  the  presbyteries  were 
in  regions  of  country  where  churches  were  not  formed  on  the  Plan 
of  Union,  and  the  statistical  reports  from  the  presbyteries  of  those 

46 


542 

regions  where  churches  were  formed  on  that  Plan,  disguised  these 
churches  under  the  denomination  of  Presbyterian  churches;  then 
their  continuance  for  any  number  of  years,  is  no  proof  of  the  acqui- 
escence of  a  majority  of  the  presbyteries. 

In  the  inquiry  touching  the  constitutionahty  of  these  acts  of  As- 
sembly of  1837,  disowning  the  four  synods,  it  is  to  be  taken  as 
proved  that  the  churches  composing  those  synods  were  Congrega- 
tional ;  the  defendants  having  offered  to  prove  that  fact,  and  the 
Court  having  rejected  that  testimony. 

(Signed,)  F.  W.  HUBBELL, /or  Defendants. 

Wednesday,  April  17,  1839. 

At  the  opening  of  the  Court  this  morning,  Mr.  Hubhell  and  Mr. 
Sergeant  appeared  i'or  the  respondents,  in  support  of  the  rule;  and 
Mr.  Meredith  and  Mr.  Randall  for  the  relators,  to  show  cause 
against  it. 

Chief  Justice  Gibson,  and  Justices  Rogers,  Kennedy,  and  Huston, 
on  the  bench. 

ARGUMENT  OF  F.  W.  HUBBELL,  ESa 
Occupying  Wednesday  and  Thursday,  the  17tii  and  18th  of  April. 

The  subject  which  we  are  about  to  submit  to  your  honours,  is  so 
extensive  and  various,  so  full  of  business  and  matter,  that  it  would 
be  treacherous  to  our  cause,  and  trifling  with  your  attention,  to  at- 
tempt any  preface  or  exordium;  vie  will,  therefore,  endeavour,  in 
this  particular,  humbly  to  imitate  the  great  masters  of  epic  song, 
and  enter  at  once  in  medias  res.  As  your  honours  have  perused  the 
printed  statement  of  the  case,  you  are  familiar  with  the  facts  from 
which  this  controversy  takes  its  rise.  The  most  general  divisions 
under  which  this  subject  can  be  intelligibly  considered  are,  first,  the 
complainants'  gravamen,  or  cause  of  complaint;  second,  the  means 
adopted  by  them  to  rectify  this  supposed  grievance  and  to  vindicate 
those  rights  which  they  allege  to  have  been  violated.  As  his  honour 
who  presided  at  the  trial  charged  on  the  whole  subject  broadly 
against  us,  this  motion  for  a  new  trial  involves  the  whole  contro- 
versy;  and  we  propose  to  show  under  the  first  of  these  divisions, 
that  our  adversaries  have  suffered  no  injustice,  that  their  alleged 
grievances  are  altogether  supposititious;  and  under  the  second,  that 
the  ex  forensic  remedy,  to  which  they  resorted,  was  abortive,  un- 
constitutional, revolutionary,  and  an  outrage  upon  the  rights  of 
their  opponents. 

The  supposed  grievance  which  is  the  cause  of  our  adversaries' 
complaint,  is  the  acts  of  the  General  Assembly  of  1837,  popularly 
called  the  excinding  acts,  and  the  preliminary  act  called  the  abro- 
gation of  the  Plan  of  Union.  You  have  perused  these  acts  in  the 
printed  statements  which  are  in  your  hands.  By  those  acts,  four 
synods,  viz.,  the  Western  Reserve,  Utica,  Genessee,  Geneva  and 
their  constituent  parts,  heretofore  integral  portions  of  the  organiza- 
tion of  the  Presbyterian  Church,  were  declared  to  be  out  of  eccle- 


543 

siastical  connexion  with  that  body,  and  the  material  of  which  they 
were  composed,  viz.,  churches  and  clergy,  were  provided  with  other 
means  of  adhesion  to  the  great  Presbyterian  system. 

In  order  to  justify  these  acts  we  shall  show  that  there  was  a  dis- 
ease in  this  body  politic,  which  required  immediate  eradication, 
and  that  the  measures  of  salutary  vigour,  which  were  used,  were 
the  only  ones  adequate  to  the  exigency,  and  that  they  were  in  strict 
consonance  to  the  constitution  of  this  church. 

You  are  aware  that  there  is  a  body  of  worshippers  within  the 
bosom  of  this  church,  chiefly  emigrants  from  New  England  or  their 
descendants,  called,  from  their  form  of  church  government,  Con- 
gregationalists,  that  there  is  a  general  assimilation  in  their  doctrines 
and  tenets  to  the  Presbyterian  faith,  both  professing  Calvinism,^ 
though  the  Congregationalists  subscribe  no  written  Confession  of 
Faith  and  receive  the  Calvinistic  standards  merely  for  substance  of 
doctrine.  The  radical  difTerence  between  these  two  sects  are  to 
be  found  in  their  forms  of  church  government,  and  as  each  church 
professes  its  own  form  to  be  of  divine  or  apostolical  origin,  and, 
therefore,  in  its  great  distinctive  features,  not  capable  of  being  law- 
fully changed  or  altered,  it  follows  that  in  fact  these  differences  of 
form  are  differences  of  faith. 

The  great  body  of  Presbyterians  likewise  believe  that  the  healthy 
discipline  of  these  forms  is  necessary  to  a  perseverance  in  their  stand- 
ards of  doctrine  and  that  if  relaxed,  all  manner  of  heresy  is  let  in. 

An  insidious  attempt  to  intermingle  these  two  systems,  or  rather 
an  attempt  to  tumble  Presbyteriani^m  from  its  pedestal  and  to  place 
Congregationalism  in  its  s'tead.  with  all  its  errors  and  looseness  of 
doctrine,  (the  natural  result  of  its  want  of  written  standards)  is  the 
cause  of  these  convulsions  in  the  church.  The  very  acts  of  1837 
which  we  are  now  considering,  are  the  throws  of  the  Presbyterian 
Church  to  relieve  itself  from  the  heterogeneous  principle  of  Congre- 
gationalism which  has  been  surreptitiously  introduced  into  its  system. 
Presbyterians  are  not  themselves  without  censure  in  regard  to  this 
attempted  amalgamation;  the  fathers  of  this  church,  in  1801,  with 
short  sighted  benevolence  consented  to  a  partial  and  strictly  limited 
union,  both  the  use  and  abuse  of  which  has  led  to  the  necessity  of 
those  acts  which  we  are  now  examining.  This  partial  union,  to 
which  I  refer,  you  will  find  in  the  printed  evidence  before  you,  and 
is  called  a  Plan  of  Union  between  Presbyterians  and  Congregation- 
alists in  the  new  settlements.  This  unconstitutional  and  ill  advised 
plan  gave  to  Congregationalists  their  first  foot-hold  in  our  system, 
of  which  they  have  not  hesitated  to  avail  themselves.  It  was  in- 
tended as  a  temporary  provision  for  weak  churches  on  the  frontiers, 
too  weak  to  organize  as  separate  denominations  for  social  worship, 
but  capable  by  conjunction  of  forming  congregations.  This  plan 
of  ephemeral  union  which  should  long  since  have  disappeared  with 
the  supposed  necessity  to  which  it  owed  its  origin,  has  laid  the 
broad  foundation  of  permanent  churches,  presbyteries,  and  synods, 
governed  as  regards  themselves,  and  only  submitting  to  Congrega- 
tional forms,  but  exercising  presbyterial  domination  over  the  rest  of 
the  church.     In  the  Synod  of  the  Western  Reserve  it  is  in  evidence 


544 

there  are  139  churches,  and  that  of  these  109  are  Congregational, 
and  in  the  other  three  excinded  synods  (as  we  offered  to  prove  on 
the  trial)  two-thirds  of  the  churches  are  Congregational.  His  honour 
excluded  this  evidence,  and  therefore,  for  the  purposes  of  this  argu- 
ment the  exclusion  is  equivalent  to  the  proof.  But  whatever  nnay 
be  the  inconveniences  of  this  incursion  of  Congregationalists  unless 
we  can  show  that  it  is  not  compatible  with  the  constitution  of  this 
church,  we  shall  inveigh  against  it  in  vain.  The  Presbyterian 
Church  has  a  written  constitution,  and  its  government  in  any  of  its 
departments  can  only  exercise  the  powers  conferred  upon  it  by  that 
constitution.  We  will  now  proceed  to  show  that  there  are  funda- 
mental provisions  in  that  constitution  at  utter  variance  with  Congre- 
gationalism, and  that  any  act  of  the  government  of  this  church  en- 
grafting Congregationalism  upon  the  s}stem  must  be  void.  Many 
of  the  provisions  of  this  constitution  are  essential,  that  is,  as  has 
been  said  before,  they  are  deemed  of  scriptural  origin,  and  not  to 
be  changed  by  man;  others  are  alterable,  and  a  provision  is  made 
for  such  alterations  by  the  constitution  itself. 

"  Before  any  overtures  or  regulations  proposed  by  the  Assembly 
to  be  established  as  constitutional  rules  shall  be  obligatory  on  the 
churches,  it  shall  be  necessary  to  transmit  them  to  ail  the  presby- 
teries, and  to  receive  the  return  of  at  least  a  majority  of  them  in 
writing,  approving  thereof."    Form  of  Government,  cap.  xii.  sect.  6. 

Now  let  us  inquire  what  principal  constitutional  provisions  this 
unnatural  conjunction  with  Congregationalism  violated.  Whether 
the  provisions  so  violated  were  alterable,  and  if  alterable  whether 
they  were  altered  constitutionally,  that  is,  by  the  method  which  I 
have  just  cited  frotn  the  constitution.  And  here  let  me  observe, 
that  these  remarks  will  be  confined  to  the  Plan  of  Union  of  1801, 
the  only  alliance  attempted  to  be  justified.  If  congregationalists 
have  obtained  admission  into  our  system  by  any  other  means,  it  is 
mere  usurpation,  without  any  pretence  of  legal  justification.  That 
such  usurpations  have  been  frequent  and  extensive  we  are  well 
aware,  and  that  small  part  of  the  Congregationalism  with  which 
our  system  is  infected,  can  claim  the  protection  (poor  as  that  is,)  of 
the  Plan  of  Union.  The  more  important  provisions  of  our  consti- 
tution which  have  been  violated  by  the  Plan  of  Union  are  these. 
The  government  of  the  Presbyterian  Church  is  committed  to  ruling 
elders  set  apart  by  ordination,  and  who  hold  their  offices  for  life. 
The  church  members  at  large  exercise  none  of  the  functions  of 
government,  except  in  the  original  election  of  these  elders.  Consti- 
tution, cap.  iii.,  sect.  2 — cap.  v..  cop.  xiii. 

Another  important  and  vital  provision  of  the  constitution  is  its 
system  of  subordination  and  appeals.  The  primary  council  of  judi- 
cature and  government  is  the  church  session,  composed  of  the  ru- 
ling elders  and  pastor  of  a  particular  conijregation.  Next  above 
this  is  the  presbytery,  composed  of  ruling  elders  and  ministers,  dele- 
gated from  a  number  of  churches,  or  rather  of  church  sessions, 
within  certain  local  bounds.  This  body  entertains  appeals  from 
the  church  sessions,  and  elects  delegates  to  the  highest  judica- 
tory; which  delegates  must  be  ruling  elders  and  ministers.     The 


545 

council  next  above  the  presbytery  is  the  synod,  composed  of  nninis- 
ters  and  delegated  ruling  elders  from  the  churches  within  larger 
local  bounds  than  the  presbyteries.  This  body  entertains  appeals 
from  the  presbyteries.  Lastly,  the  great  oecumenical  Assembly 
which  is  composed  of  delegated  ruling  elders  and  ministers  from 
all  the  Presbyterian  churches  in  the  United  States.  This  august 
body,  besides,  like  the  inferior  judicatories  having  other  extensive 
powers,  is  the  court  of  last  resort,  and  finally  determines  appeals 
which  have  ascended  successively  from  the  session  to  the  presby- 
tery and  from  the  presbytery  to  the  synod. 

The  government  by  ruling  elders,  and  this  right  of  appeal  by 
which  any  individual  member  of  the  church  may  have  his  case  or 
his  grievance  submitted  to  the  representation  of  the  whole  church, 
is  in  our  faith  scriptural,  apostolical,  divine,  and  therefore  unaltera- 
ble. See  constitution  ubi  supra  and  cap.  xii.  in  notes.  Congrega- 
tionalism knows  no  ruling  elders;  their  government  is  exercised  by 
the  church  members  themselves,  in  a  form  simply  democratic.  It 
knows  no  subordination  of  judicatures  or  appeals,  each  church  is 
independent  and  for  itself  governs  its  members,  and  adjudicates 
their  complaints.  They  are,  it  is  true,  united  into  associations,  but 
these  associations  exercise  only  an  advisory  jurisdiction. 

We  are  now  ready  to  compare  the  Plan  of  Union  with  these  con- 
stitutional tests.  It  is  on  this  Plan  of  Union  that  our  adversaries  at- 
tempt to  justify  the  introduction  of  Congregationalism  into  the 
Presbyterian  system.  If  we  demonstrate  the  unconstitutionality  of 
this,  they  are  left  without  an  argument.  The  parts  of  that  plan 
essential"  to  this  argument  are  these:  that  a  Congregational  church 
may  settle  a  Presbyterian  pastor,  (and  it  regulates  the  mode  of  deter- 
mining disputes  between  them,  but  deprives  this  clergyman  of  the 
appeal  to  the  presbytery  to  which  he  belongs,  unless  by  the  consent 
of  his  congregation;)  and  that  a  Presbyterian  congregation  may 
settle  a  Congregational  pastor.  It  provides  also  for  the  erection  of 
mixed  congregaiions  partly  Presbyterian  and  partly  Congrega- 
tional, and  substitutes  for  the  church  sessions,  composed  of  ruling 
elders,  a  standing  committee  from  the  communicants  of  the  church, 
and  from  the  decision  of  this  body  it  gives  an  appeal,  if  the  party 
aggrieved  be  a  Presbyterian,  to  the  presbytery  within  whose  local 
bounds  the  church  may  be  situated,  if  a  Congregationalist  to  the 
body  of  male  communicants  of  the  church,  but  deprives  the  Presby- 
terian of  his  ulterior  appeal  to  the  synod  and  General  Assembly. 
It  further  contains  this  provision,  "  and  provided  the  said  standing 
committee  of  any  church  shall  depute  one  of  themselves  to  attend 
the  presbytery,  he  may  have  the  same  right  to  sit  and  act  in  the 
presbytery  as  a  ruling  elder  of  the  Presbyterian  Church." 

Cutting  off  any  Presbyterian  from  the  right  of  appeal  to  the 
synod  and  General  Assembly,  is  unquestionably  a  violation  of  the 
constitution.  What  an  incongruity  is  this  in  any  civilized  system; 
here  is  one  member  of  the  Presbyterian  Church  entitled  to  the 
judgment  of  the  whole  church,  when  under  accusation,  but  here  is 
his  brother  in  equal  good  standing,  whose  doom  is  finally  pro- 
nounced by  perhaps  a  prejudiced  local  presbytery! ! 

46* 


546 

But  the  most  flagrant  violation  of  tlie  constitution  is  that  provi- 
sion, the  words  of  which  I  have  just  cited,  which  adinits  unordained 
lay  delegates  to  sit  and  act  in  the  presbyteries  with  the  same  rights 
as  ruhng  elders  of  the  Presbyterian  Church.  In  this  provision  is  to 
be  found  the  fountain  of  all  the  calamities  which  ensued.  It  is  con- 
fined by  the  act  of  union  to  the  mixed  churches  having  standing 
committees,  but  under  the  latitude  which  it  has  established,  Con- 
gregational churches,  without  any  intermixture  of  Presbyterianism, 
have  sent  unordained  lay  delegates  to  the  presbyteries,  and  have 
called  the  whole  body  of  male  communicants,  to  whom  by  the  Con- 
gregational system  the  government  of  the  church  is  committedj. 
their  standing  committee,  (see  Mr.  Squier's  testimony  omitted  by 
accident  from  the  printed  evidence,*  but  to  be  found  in  the  counsel's 
notes,)  and  under  pretence  of  this  and  other  provisions  of  the  Plan 
of  Union,  one  of  the  excinded  synods  denied,  by  a  public  act,  that 
ruling  elders  were  necessary  to  a  Presbyterian  Church.  (See  printed 
evidence,  page  11.)  Under  pretence  of  this  provision  they  have  not 
only  filled  the  presbyteries  in  the  region  of  the  excinded  synods  with 
lay  delegates,  but  have  openly  claimed  a  right  to  seat  tliem  in  the 
General  Assembly  itself,  and  have  prevailed,  (see  printed  evidence, 
page  46,)  although  they  more  frequently  gained  admission  to  that 
body  by  disguising  themselves  as  ruling  elders.  (See  Mr.  Bissel's 
case,  printed  evidence,  page  4u.)  P'or  years  this  subject  has  been 
agitated  and  discussed,  and  the  ndvocates  for  the  rights  of  Congre- 
gational churches  to  send  their  lay  delegation  to  the  judicatories  of 
this  Presbyterian  Church,  have  alvvnys  founded  its  defence  on  this 
particular  provision  of  the  Plan  of  Union,  without  which  they  have 
no  pretence  for  their  intrusion.  In  the  Synod  of  the  Western  Re- 
serve there  are  one  hundred  and  nine  Congregational  churches 
without  ruling  elders,  and  yet  they  are  all  represented  in  the  pres- 
byteries by  unordained  delegates,  by  men  w^ho  are  not  pledged  to 
our  written  Confession  of  Faith;  and  yet  these  presbyteries  elect 
the  delegates  to  the  General  Assembly.  How  is  it  possible  for  the 
General  Assembly  to  enforce  conformity  to  our  standards,  when  its 
constituency  is  composed  of  men  who  do  not  admit  these  standards? 
Experience  conformed  to  what  might  have  been  anticipated,  atid 
when  Mr.  Barnes  was  prosecuted  for  deviation  from  the  Presbyte- 
rian standards,  he  was  acquitted,  in  a  great  measure,  by  the  votes 
of  delegates  from  that  constituency  which  does  not  subscribe  to 
these  standards.  As  we  said  before,  this  disturbance  of  the  harmo- 
ny of  our  system  must  be  justified,  if  at  all,  upon  the  Plan  of  Union. 
The  constitution  is  peremptory  in  its  provisions,  and  those  who  set 
these  provisions  at  defiance,  have  always  pointed  to  the  act  of  union, 
as  a  justification  of  their  departure.  If  Congregationalism  is  not 
subject  to  expulsion  from  our  system,  it  is  because  it  has  come  in 
under  the  Plan  of  Union.  Congregationalists  themselves  would 
scarcely  desire  the  connexion  unless  it  gave  them  a  share  in  the 

**  The  parenthetical  notes  found  in  this  argument  were  inserted  by  the  counsel. 
Not  being  willing  to  niter  them,  in  his  absence,  it  is  necessary  here  to  say,  that  the 
printed  evidence  referred  to,  is  that  submitted  to  the  Court  in  a  pamphlet,  pre- 
pared by  the  counsel;  to  tlie  pages  of  which  pamphlet  the  figures  in  these  paren- 
theses refer.     The  evidence  itself  is  in  its  proper  place  and  order  in  this  report. 


547 

government  of  the  church,  and  therefore  they  consider  the  pro- 
vision of  that  act  which  enables  them  to  send  lay  delegates  to  the 
presbyteries,  [he  most  important  feature  in  that  plan.  By  this  every 
individual  Congregationalist  was  enabled  to  join  in  the  government 
of  the  Presbyterian  Church,  but  yet  was  himself  exempt  from  its 
discipline;  for  if  those  whom  he  aided  in  governing  through  his  de- 
legates, attempted  to  enforce  the  discipline  of  that  church  against 
him,  he  could  only  be  tried  by  his  fellow  communicants,  who,  like 
himself,  were  not  pledged  to  the  standards  of  faith,  and  from  their 
decision  there  is  no  appeal  to  the  higher  tribunals  of  the  church. 

It  remained  for  their  own  professional  advocates  in  this  cause  to 
take  away  from  their  Congregational  clients  the  only  justification 
to  which  they  have  appealed  for  nearly  forty  years.  The  learned 
counsel  has  argued,  and  the  learned  judge  has  adopted  this  argu- 
ment, that  the  provision  of  the  Plan  of  Union  which  we  are  discus- 
sing, does  not  authorize  the  sending  of  unordained  lay  delegates  to 
the  presbyteries  generally  ;  that  is,  to  participate  in  the  generid  du- 
ties of  the  presbytery,  but  that  it  is  confined  to  judicial  cases  of  ap- 
peal from  the  standing  committees,  and  that  when  that  judicial  pro- 
ceeding is  terminated,  the  lay  delegate  must  retire.  In  this  argu- 
ment v/e  might  well  acquiesce,  and  then  the  presbyteries  of  the 
Western  Reserve,  filled  with  lay  delegates  in  the  proportion  of  one 
hundred  and  nine  to  thirty,  and  in  the  presbyteries  of  the  other  ex- 
cinded  synods  in  scarcely  a  less  proportion,  are  clear,  unqualified 
unjustifiable  usurpations  of  the  rights  of  Presbyterians.  But  we  will 
save  our  adversaries  from  themselves,  and  show  that  they  have  the 
justification  of  this  provision  in  the  Plan  of  Union,  so  far  as  an  un- 
constitutional provision  can  justify  them.  His  Honour,  the  judge 
who  presided  at  the  trial,  distinctly  admits,  that  upon  our  construc- 
tion of  this  clause  of  the  Plan  of  Union,  it  is  clearly  unconstitutional 
and  void,  and  in  endeavouring  to  show  that  the  act  of  union  did  not 
contain  such  an  unconstitutional  provision,  he  forgot  that  he  left 
our  adversaries  without  any  justification  at  all.  The  language  of 
this  clause  is  too  explicit,  it  seems  to  me,  to  permit  one  moment's 
hesitation.  It  is  true  that  the  previous  parts  of  the  section  pertain 
to  trials  by  the  standing  committee,  and  appeals  from  that  commit- 
tee, and  there  might  be  some  show  of  argument  from  thence  to  con- 
fine the  clause  in  question  to  the  subject  of  the  context,  had  not  the 
framers  of  this  act,  as  if  anticipating  such  a  construction,  and  deter- 
mined to  exclude  it,  declared  not  only  that  the  standing  committee 
should  have  the  power  of  sending  delegates  to  the  presbytery,  but 
expressly  defined  the  commission  of  such  delegates,  which  is  "the 
same  right  to  sit  and  act  in  the  presbyteries  as  a  ruling  elder  of  the 
Presbyterian  Church,"  not  to  sit  merely  on  the  appeal,  but  in  the 
presbytery,  not  merely  as  a  judge  of  the  appeal,  but  as  a  ruling 
elder,  not  merely  judicially  to  determine,  but  to  sit  and  act.  This 
attempted  construction  of  our  adversaries  is  rendered  still  more  un- 
tenable when  we  consider  that  it  gives  the  right  of  sitting  in  the 
appellate  tribunal  to  try  appeals  of  a  member  of  the  court  appealed 
from,  that  is,  it  gives  him  the  right  of  sitting  in  judgment  upon  his 
own  decisions;  an  absurdity  always  forbidden  by  the  policy  of  this 


548 

church,  and  now  by  its  constitution,  and  also  abhorred  by  the  com- 
mon sense  of  mankind,  and  ihe  universal  practice  of  civilized  na- 
tions. 

See  constitution  Book  2d,  Chap,  vii..  Sec.  3. — "  Members  of  ju- 
dicatories appealed  from,  cannot  be  allowed  to  vote  in  the  superior 
judicatories  on  any  question  connected  with  the  appeal."  See  also 
Assembly's  Digest,  page  332.  In  which  it  appears  that  as  early  as 
the  year  1792  the  General  Assembly  authoritatively  settled  the  im- 
propriety of  a  member  of  the  body  appealed  from  sitting  on  the  trials 
of  that  appeal. 

I  have  assumed  the  high  ground  that  this  Plan  of  Union  conflict- 
ed with  the  unalterable  parts  of  the  constitution  of  this  church,  and 
I  have  laid  before  you  at  large  some  reasons  for  the  position.  Others 
may  be  added  of  equal  cogency,  one  of  which  I  will  advert  to  suc- 
cinctly. The  act  of  the  legislature  of  Pennsylvania  incorporating, 
"the  trustees  of  the  ministers  and  elders,  constituting  the  General 
Assembly  of  the  Presbyterian  Church:"  any  innovation  by  which  the 
Presbyterian  Church  loses  the  distinctive  character  of  Presbyterian- 
ism,  conflicts  with  the  charter,  and  such  revolutionized  church 
would  be  unable,  legally,  to  perform  the  functions  assigned  to  it  by 
that  charter.  But  assuming  (for  the  sake  of  the  argument  only) 
that  the  portion  of  the  constitution  confiding  the  government  of  the 
church  to  ruling  elders,  and  giving  the  right  of  appeal  from  the 
presbyteries  to  the  synods,  &c.,  may  be  altered,  this  alteration  must 
be  efl'ected  in  a  constitutional  manner,  that  is,  by  the  written  ap- 
proval of  a  majority  of  the  presbyteries.  The  Plan  of  Union  did  not 
receive  the  sanction  of  a  constitutional  majority  of  the  presbyteries, 
nor  of  any  of  them,  in  fact,  for  it  was  not  submitted  to  them,  it  was 
passed  by  the  sole  authority  of  the  General  Assembly;  it  was  there- 
fore void'  from  the  beginning,  and  those  who  claim  rights  under  it 
rely  on  an  unconstitutional  title.  It  has  been  argued  with  great 
vehemence,  and  the  argument  has  received  the  sanction  of  his 
Honour  who  presided  at  the  trial,  that  long  acquiescence  by  the 
presbyteries  in  the  existence  of  this  Plan  of  Union,  is  equivalent  to 
a  confirmation.  Acquiescence  may  be  equivalent  to  positive  appro- 
bation, but  then  it  must  be  proved  that  he  who  is  supposed  to  have 
acquiesced,  was  fully  informed  upon  the  subject  upon  which  he  is 
supposed  to  have  given  his  mute  or  passive  vote.  Our  adversaries 
are  not  guilty  of  the  absurdity  of  contending  that,  the  permitting  an 
unconstitutional  act  to  lie  dormant  upon  the  statute  book  in  harm- 
less inanity  for  any  number  of  years,  should  be  construed  into  ac- 
quiescence; but  it  is  the  long  acquiescence  in  things  done  and  insti- 
tutions established  under  the  Plan  of  Union,  that  they  contend  is 
equivalent  to  a  constitutional  vote  in  their  favour. 

There  are  some  parts  of  the  Plan  of  Union  entirely  unexception- 
able when  measured  by  the  constitution  of  this  church.  Whether 
that  provision,  which  enables  a  congregational  pastor  to  preside 
over  a  Presbyterian  flock,  be  so,  it  is  unnecessary  to  determine,  for 
there  are  not,  nor  has  there  been,  any  such  existence.  Congrega- 
tional pastors  have  uniformly,  when  they  come  into  our  fold,  con- 
formed to  our  discipline  and  become  Presbyterians,  paying  thereby 


549 

a  tacit  homage  to  the  superiority  of  our  institutions  in  securing  the 
rights  of  the  clergy. 

But  there  is  another  provision  of  that  Plan  of  Union  which  has 
been  called  into  extensive  exercise,  which  is  the  enabling  Presbyte- 
rian ministers  to  preside  over  Congregational  churches.  This  provi- 
sion in  no  wise  conflicts  with  our  constitution.  We  may  send  our 
clergy  as  missionaries  to  the  heathen  !  (not  meaning  by  this  expres- 
sion any  disrespect  to  the  respectable  denomination  of  Congrega- 
tionalist's.)  Every  church  has,  or  should  have,  its  propaga?ida. 
The  minister  so  situated  suffers  some  diminution  of  Presbyterian 
rights,  but  that  is  voluntary  and  temporary,  to  be  resumed  again 
■when  he  leaves  his  Congregational  charge.  Such  an  arrangement  is 
not  obnoxious  to  constitutional  censure,  because  it  does  not  give 
such  Congregational  church  any  place  in  our  system  by  represen- 
tation or  otherwise.  Such  church  employs  a  Presbyterian  pastor, 
and  that  is  all ;  it  has  no  voice  in  our  tribunals.  Such  Congregation- 
alists  neither  act  upon  us  nor  reciprocally  do  we  act  upon  them. 
But  it  is  in  the  provision  for  mixed  churches  contained  in  this  Plan 
of  Union,  that  we  find  the  several  collisions  with  our  constitution 
that  1  have  been  pointing  out. 

Now  to  the  bearing  of  these  remarks  upon  the  point  ot  acqui- 
escence, permitting  the  preaching  of  Presbyterian  pastors  to  Con- 
gregational churches,  cannot  be  considered  as  acquiescence  in  the 
change  of  the  constitution  by  the  Plan  of  Union,  for  that  was  toler- 
able and  proper,  independent  of  the  Plan  of  Union,  and  does  not 
conflict  with  or  require  alteration  in  any  of  its  provisions. 

It  is  only  then  in  regard  to  the  mixed  churches  with  standing 
committees,  or  purely  Congregational  churches,  which,  treating  or 
considering  their  whole  body  of  male  communicants  as  a  standing 
committee,  have  sent  delegates  to  the  judicatories  of  our  church, 
and  have  wound  their  parasitic  tendrils  round  the  goodly  trunk  of 
Presbyterianism,  that  the  question  of  acquiescence  arises.  As  to  the 
last  of  these,  viz:  the  pure  Congregational  churches  sending  dele- 
gates, it  is  a  mere  abuse ;  it  has  no  sanction  in  any  act  of  the  church, 
constitutional  or  unconstitutional.  There  was,  as  regards  these 
members,  no  subject  for  acquiescence;  no  proposition  submitted  to 
which  the  presbyteries  could  answer;  no  colour  of  right  which  by 
time  and  neglect  of  opposition  might  be  deemed  to  be  approved;  no 
invitation,  which,  after  many  years  it  would  be  inequitable  to  revoke 
on  constitutional  grounds.  Unless  therefore  our  adversaries  can 
show  that  there  is  an  act  of  limitation,  they  must  be  content  to  give 
up  the  ground  of  acquiescence  in  regard  to  this  class  of  Congrega- 
tional churches.  Knowledge  of  the  slate  of  the  church  is  only  im- 
parted to  the  General  Assembly,  and  disseminated  by  that  body  to 
the  various  constituent  parts  of  the  church  by  the  presbyierial  re- 
ports, which  reports  ought  and  profess  to  inform  the  General  Assem- 
bly of  the  number  of  Presbyterian  pastors  who  preside  over  Con- 
gregational churches,  and  of  the  number  of  Presbyterian  and 
mixed  churches  in  each  presbytery.  They  profess  to  give  the  name 
of  each  church  within  the  bounds  of  the  presbyteries,  and  whether 
they  be  Presbyterian  or  Congregational.    But  these  reports  from  the 


550 

presbyteries  in  the  excinded  synods  iiave  ever  been  illusory.  Al- 
though there  are  one  hundred  and  nine  Congregational  churches  in 
the  synod  of  the  Western  Reserve,  yet  they  have  been  represented 
for  years  in  the  presbyterial  reports  as  Presbyterian  churches;  and 
although  Congregational  churches  abound  in  the  other  three  synods, 
yet  no  trace  of  them  appears  in  their  presbyterial  reports.  Mr. 
Squier  designated  in  his  testimony  certain  churches  within  these 
bounds  as  Congregational,  and  yet,  by  reference  to  these  presbyte- 
rial reports,  we  find  those  churches  called  Presbyterian.  If  these 
misrepresentations  were  intended  to  deceive,  they  are  not  reconci- 
lable with  good  morals,  but  whether  intended  to  deceive  or  not,  they 
effectually  put  to  rest  the  argument  of  acquiescence.  If  the  church 
has  made  no  effort  heretofore  to  expel  these  intruders,  it  is  because 
they  appeared  on  the  records  not  to  be  intruders  but  Presbyterians. 

Another  argument  has  been  much  elaborated  by  our  adversaries. 
They  say  that  the  constitution  has  been  repeatedly  amended  since 
the  adoption  of  the  Plan  of  Union,  that  particularly  in  the  year  1821, 
it  underwent  almost  an  entire  revision  ;  and  they  find  in  this  some 
evidence  of  the  approbation  hy  the  presbyteries  of  that  plan.  I  am 
unable  to  discover  such  evidence.  Certain  amendments,  and  in  the 
year  1821  very  extensive  ones,  but  having  no  allusion  whatever  to 
the  Plan  of  Union,  are  submitted  to  the  presbyteries  and  approved 
by  them.  The  provisions  in  the  constitution  as  it  stood  in  1801, 
were  sufficiently  obvious  in  their  opposition  to  the  Plan  of  Union. 
Scarcely  any  amendment  could  have  made  them  more  so.  Had 
therefore  these  alterations  emanated  from  the  presbyteries,  the 
omission  to  aim  one  directly  at  the  Plan  of  Union,  could  scarcely 
have  been  construed  as  an  approval  of  that  plan. 

We  have  now,  I  believe,  I'eviewed  all  that  has  been  argued  in 
justification  of  these  unnatural  espousals. 

A  more  determined  effort  has  been  made  by  our  adversaries,  to 
condemn  the  means  to  which  we  resorted  in  1837,  to  rectify  this 
evil,  whose  encroachments  had  then  become  intolerable. 

Let  our  adversaries  deny  it  as  much  as  they  please  for  the  pur- 
pose of  this  judicial  contest,  they  cannot  suppress  the  fact  that  there 
is  a  great  schism  in  this  church  upon  doctrinal  tenets  and  funda- 
mental points  of  religion.  One  of  the  learned  counsel  has  designa- 
ted it  as  a  mere  logomachy  or  war  of  words.  He  pays  but  a  poor 
compliment  to  his  clients,  if  this  doctrinal  controversy,  in  which 
they  have  embarked  and  persisted  even  to  the  rending  of  the  church, 
is  a  mere  war  of  words.  These  differences  of  religious  sentiment 
may  be  comprehensively  described  as  on  the  one  part  a  strict  ad- 
herence to  the  written  standards  of  the  faith,  and  on  the  other  part 
a  loose  Neological  and  latitudinarian  construction  of  them.  The 
great  object  of  the  institution  of  the  body  politic  of  the  Presbyterian 
Church  is  to  preserve  theological  uniformity.  It  has  adopted  its 
standards  to  prevent  the  vagaries  of  speculation,  and  it  has  adopted 
its  discipline  to  enforce  conformity  to  those  standards.  The  con- 
struction and  interpretation  of  these  standards  are  entrusted  to  its 
tribunals,  and  the  decision  of  its  highest  judicatories,  in  the  inter- 
pretation of  its  creed,  makes  the  condemned  opinion  heresy.     To 


551 

this  issue  was  the  theological  controversy,  which  had  for  so  many 
years  distracted  the  church,  about  to  be  brought  in  1837,  and  upon 
its  determination  the  defeated  party  must  either  have  seceded  I'rom 
the  church  or  ceased  to  teach  and  profess  the  condemned  opinions. 
Common  justice  required  that  in  this  domestic  quarrel  there  should 
be  no  foreign  intruders.  That  in  the  debate  and  strife  concerning 
the  construction  of  the  standards,  those  should  have  no  voice  who 
entirely  denied  their  obHgation.  It  was  then  that  attention  was 
more  intensely  called  to  that  imposthume,  which  had  so  long 
aggrieved  the  body  politic,  and  the  crisis  emphatically  demanded  its 
eradication. 

We  maintain,  notwithstanding  the  clamours  of  our  adversaries, 
notwithstanding  their  vehement  appeals  to  popular  feelings,  that  the 
remedy  to  which  we  resorted  was  the  best,  whether  considered  hu- 
manly, divinely,  politically,  or  constitutionally.  Before,  however, 
these  measures  were  enforced,  all  that  a  Christian  spirit  could 
prompt  amicably  to  adjust  the  difierence,  was  submitted  by  us  to 
our  adversaries.  We  met  them  in  conference,  and  it  was  solemnly 
agreed  that  a  separation  was  necessary.  An  equitable  division  of  the 
temporahties  was  profiered  by  our  party  and  accepted  by  our  ad- 
versaries. There  appeared  for  a  time  every  prospect  that,  like  Lot 
and  Abraham,  the  one  party  would  have  taken  the  right  hand  and 
the  other  the  left,  in  peace,  until  our  adversaries  made  one  unrea- 
sonable demand,  in  which  we  could  not  have  acquiesced  without 
dishonour  and  without  disturbing  the  ashes  of  our  fathers!  We 
were  the  decided  majority ;  we  represented  the  old  seats  of  Pres- 
byterianism;  in  our  ranks  were  to  be  found  its  venerable  patriarchs; 
we,  therefore,  claimed  to  have  the  succession  to  continue  the  church 
which  had  heretofore  existed,  and  to  keep  alive  its  sacred  fires. 
Our  adversaries,  on  the  contrary,  insisted  upon  its  destruction,  that 
we  should  join  in  pulling  down  the  venerable  fabric,  and  that  each 
party  should  erect  for  itself  a  new  temple  from  the  ruins  of  the  old. 
The  learned  counsel  on  the  trial  discovered  in  our  propositions, 
some  sinister  and  esoteric  meaning  that  perhaps  served  the  purpose  of 
popular  etiect  with  the  jury.  Our  adversaries  themselves,  I  believe, 
have  never  imputed  to  us  any  want  of  sincerity  in  these  negotia- 
tions, and  if  they  have,  their  imputations  are  without  proof.  These 
negotiations  having  failed,  and  it  being  conceded  in  the  negotiations 
themselves  that  there  was  a  difference  of  theological  opinions 
which  was  incompatible  with  union,  the  struggle  commenced  to 
determine  which  was  to  be  held  as  the  orthodox  opinions  of  this 
church.  And  as  a  preliminary  in  this  struggle  those  recuperative 
and  purifying  measures  were  resorted  to  which  have  expelled  these 
heterogeneous  materials  that  impeded  the  true  order  of  the  system. 

Will  any  one  deny,  who  is  unaffected  with  party  prejudice,  that 
Congregationalism  had  no  proper  place  in  this  system,  and  that  it 
ought  by  some  means  to  have  been  removed  1  I  believe  not  one. 
There  is  then  but  one  question  remains,  Were  the  measures  by 
which  its  expulsion  was  effected  constitutional?  This  question  is 
a  very  narrow  one,  were  we  to  confine  it  strictly  to  the  mere  ques- 
tion of  law.     We  have  been  discursive,  perhaps  tediously  so,  in  order 


552 

to  show  the  justice  of  our  acts,  when  we  might  have  confined  our- 
selves simply  to  their  legality.  Strictly,  this  court  can  only  inquire 
whether  the  acts  of  excision  were  within  the  powers  confided  by 
the  constitution  to  the  General  Assembly;  and  if  that  be  determined 
affirmatively,  this  court  cannot  rejudge  its  justice,  cannot  inquire 
inio  the  corpus  delicte,  the  nature  or  evidence  of  the  delinquency 
which  caused  the  exercise  of  these  powers.  This  is  a  familiar 
principle  in  this  court,  enforced  and  newly  illustrated  at  every  ses- 
sion. If  voluntary  associations  constitute  their  own  tribunals,  they 
must  abide  by  the  decisions  of  these  tribunals,  however  partial  or 
erroneous.  The  only  aid  that  the  malcontents  can  ask  from  the 
ordinary  tribunals  of  the  country,  is  to  confine  the  special  trjbunals 
to  the  exercise  of  the  powers  committed  to  them.  As  to  the  mode  of 
the  exercise,  the  wisdom  or  justice  of  their  decisions,  they  are  in- 
dependent and  without  visitation  or  appeal. 

The  first  or  preliminary  act  to  which  the  General  Assembly  re- 
sorted to  purify  the  church,  was  the  act  of  abrogating  the  Plan  of 
Union,  or  in  other  words  declaring  it  to  have  been  unconstitutional 
and  void  from  the  beginning.  The  right  to  abolish  this  Plan  of 
Union  for  all  future  time  seems  to  be  conceded  by  the  opposite  ar- 
gument; but  they  object  to  the  retrospective  efiect  of  that  act  of 
abrogation.  This  act  of  abrogation  is  a  mere  nameless  abstraction, 
without  practical  consequences;  the  acts  of  excision  are  those  which 
have  been  carried  into  operation,  and  which  are  the  real  grounds  of 
this  controversy. 

The  acts  of  excision,  so  called,  we  say,  will  appear  to  be  mere 
acts  of  dissolution,  when  resolved  into  these  simple  elements;  and 
all  that  is  urged  against  their  legality  will  be  found  to  be  inapplica- 
ble, when  they  are  denuded  of  certain  unessential  accompaniments 
which  were  unskilfully  attached  to  them.  The  power  of  the  Ge- 
neral Assembly  to  dissolve  synods  has  never  been  questioned. 

It  is  not  expressly  given  by  the  constitution,  but  is  a  necessary 
implication  from  the  power  to  create  them,  an  implication  as  ne- 
cessary as  that  by  which,  in  our  own  political  constitution,  we  at- 
tach the  power  of  removing  to  the  power  of  appointing.  Among  the 
enumerated  powers  of  the  General  Assembly  in  sect.  5,  cap.  12,  of 
the  Form  of  Government,  we  find  the  powers  of  "  erecting  new 
synods  when  it  may  be  judged  necessary,"  and  the  exercise  of  the 
constructive  and  subordinate  powers  has  almost  always  accompa- 
nied the  exercise  of  that  power,  which  is  express  and  principal,  for 
two  synods  originally  embraced  the  whole  territories  of  these  United 
States,  and  consequently  the  creation  of  every  new  synod  involved 
the  partial  dissolution  of  the  old.  The  synods  have  express  power 
to  create  or  erect  presbyteries,  but  no  express  power  to  dissolve 
ihem,  but  only  to  unite  and  divide  them.  Yet  the  power  of  disso- 
lution has  been  exercised  by  them  without  question  since  the  insti- 
tution of  the  church,  and  this  although  they  have  not  the  higher 
and  almost  unlimited  power  conferred  on  the  General  Assembly  by 
the  words  "  of  superintending  the  concerns  of  the  whole  church." 
]n  the  Form  of  Government,  cap.  5,  sect.  12,  see  the  act  of  1834, 
Minutes  of  the  General  Assembly,  dissolving  the  Synod  of  the  Che- 


S53 

sapeake,  1  have  said  that  these  acts  of  1837  have  been  called  ex- 
cinding  acts,  disowning  acts,  and  acts  of  expulsion;  although  in  the 
heat  of  party  they  may  have  been  moulded  with  these  repulsive 
ieatures,  yet,  when  calmly  considered,  without  passion  or  prejudice, 
they  will  be  seen  to  be  essentially  no  more  than  the  exercise  of  the 
undoubted,  the  familiar,  the  conceded  power  of  dissolution. 

Excision  must  operate  on  the  ultimate  materials  of  the  church, 
on  its  elemental  subdivisions,  either  territorially,  that  is  by  excluding 
a  territory  with  the  Presbyterian  materials  within  its  bounds,  from 
the  domain  of  the  church,  or  by  retaining  the  territory  and  exclud- 
ing such  materials;  any  thing  short  of  this  is  dissolution,  the  essence 
of  which  is  elementary  resolution. 

Now  these  acts  declare  the  synods  in  question  to  be  no  longer  in 
ecclesiastical  connexion  with  the  Presbyterian  Church,  and  in  the 
third  of  the  exegetical  resolutions,  appended  to  these  acts,  it  seems 
to  be  asserted  that  these  acts  extend  also  to  their  constituent  parts, 
but  in  the  fourth  of  these  resolutions  all  churches,  ministers  and 
presbyteries  which  are  strictly  Presbyterian  in  doctrine  and  order, 
that  is,  all  the  Presbyterian  materials  within  those  synods  are  pro- 
vided for  and  in  efiect  retained.  In  other  words,  all  such  churches 
and  ministers  are  directed  to  apply  for  admission  to  those  presby- 
teries which  are  most  convenient  to  their  respective  locations;  and 
such  presbyteries  as  are  strictly  Presbyterian  in  doctrine  and  order, 
are  directed  to  apply  to  the  (Tcneral  Assembly. 

Our  adversaries,  I  am  aware,  have  much  to  urge  against  this 
construction,  in  the  phraseology  of  the  resolution,  and  in  its  prac- 
tical effects;  the  language  of  the  fourth  resolution,  it  is  contended, 
imports  that  these  Presbyterian  materials  have  been  removed  from 
the  church,  for  it  uses  the  phrase  "if  they  wish  to  unite  with  us," 
which  imports  that  they  have  by  these  acts  been  excinded.  We 
answer  to  this,  that  we  are  not  inquiring  what  the  General  Assem- 
bly thought  they  had  done,  nor  even  what  they  intended  to  do,  but 
simply  what  they  did,  and  when  we  find  that  all  Presbyterian 
churches,  ministers  and  even  presbyteries  within  those  bounds  were, 
so  far  from  being  expelled  from  the  church,  only  in  effect  given  the 
means  of  retiring  at  their  option  or  continuing  at  their  option,  we 
aver  that  it  was  a  dissolution  and  not  an  excision. 

Let  it  also  be  observed  that  the  word  unite,  when  construed  by 
reference  to  the  subject  of  which  it  is  predicated,  is  a  strong  cor- 
roboration of  our  argument;  dissolution  is  the  solution  of  union; 
by  the  dissolution  of  the  synod,  the  ligament  of  union  between  the 
particular  churches  and  the  general  church  is  dissolved,  but  not 
the  obligation  of  the  latter  to  lurnish  new  means  of  union;  which 
would  be  the  case,  were  it  an  expulsion  or  an  excision.  But  our 
adversaries  endeavour  to  point  out  some  practical  inconveniences, 
and  assert  that  these  resolutions  put  it  in  the  power  of  the  pres- 
byteries to  which  they,  the  churches  and  ministers,  are  directed 
to  apply,  and  (in  case  a  presbytery  is  the  applicant)  of  the  General 
Assembly  to  reject  them.  None  have  been  as  yet  rejected,  and 
when  they  have  been  that  will  be  the  first  act  of  injustice.  A  mere 
possibihty  of  injustice  can  be  no  sufficient  reason  for  condemning 

47 


554 

these  acts  and  dismembering  the  church.  As  to  these  arguments 
from  inconvenience,  it  may  be  said  that  so  great  a  reform  as  the 
expulsion  of  these  intruding  Congregationalists  could  not  be  effected 
without  these  very  inconveniences  which  are  the  subject  of  com- 
plaint. A  synod  is  dissolved  because  it  is  deeply  infected  with 
Congregationalism,  which  cannot  be  otherwise  eradicated ;  the 
Presbyterian  materials,  which  are  thus  reduced  to  a  fragmentary 
state,  must  be  culled  with  caution,  lest  some  portion  of  the  Congre- 
gational materials  be  heedlessly  picked  up  and  confounded  with 
them. 

As  this  fourth  resolution  provides  for  such  presbyteries  as  are 
strictly  Presbyterian  in  doctrine  and  order,  it  is  scarcely  necessary 
to  consider  the  power  of  the  General  Assembly  to  dissolve  presby- 
teries, for  here  were  none  dissolved,  they  were  invited  to  a  reunion 
in  their  undisturbed  integrity.  It  is  true,  this  invitation  is  confined 
to  those  presbyteries  which  are  strictly  Presbyterian  in  doctrine  and 
order;  but  these. were  all  that  were  entitled  to  receive  such  invita- 
tion. A  presbytery  that  is  not  Presbyterian,  is  a  palpable  fraud,  un- 
deserving notice,  except  for  reprehension;  Presbyterian  in  doctrine, 
that  is,  not  Arminian,  not  Pelagian,  not  Socinian.  Will  our  adver- 
saries object  to  the  terms  of  this  invitation?  It  is  true  we  have  taxed 
them  with  Arminianism  and  Pelagianism,  but  they  have  not  justi- 
fied but  denied  the  charge.  Presbyterian  in  order,  that  is,  composed 
of  ruling  elders,  and  not  of  lay  delegates,  thus,  it  is  true,  excluding 
Congregationalists,  but  that  we  meant  to  do,  and  by  our  right,  so  to 
do,  we  abide.  But  they  must  be  strictly  Presbyterian  in  doctrine 
and  order;  our  standards  know  no  difference  as  to  doctrine  between 
a  strict  Presbyterian  and  a  presbyterian.  The  contest  between  the 
theological  parties  has  been,  what  is  strict  Presbyterianism?  They 
contend  that  we  are  deluded  by  our  adhesion  to  the  letter  and  that 
they  construe  according  to  the  spirit  of  the  standards:  but,  never- 
theless, they  contend  that  they  are  as  strictly  Presbyterian  as  we. 
Whatever,  therefore,  may  have  been  the  design  of  the  framers  of 
this  resolution,  they  have  not  committed  themselves  by  using  lan- 
oruage  which  our  adversaries  will  admit  is  descriptive  of  them.  As 
to  the  term  strictness  of  order,  it  indicates,  no  doubt,  such  presby- 
teries as  permit  no  lay  delegates;  those  presbyteries  whose  general 
structure  is  Presbyterian  could  easily  have  accommodated  themselves 
to  this  invitation  (and  were  bound  so  to  do)  by  expelling  any  lay 
delegates  they  may  have  entertained. 

Had  however  the  acts  of  1837  dissolved  the  presbyteries  as  well 
as  the  synods,  our  adversaries  could  scarcely  complain,  for  in  the 
year  1832,  the  party  of  our  adversaries,  then  dominant  in  the  Gene- 
ral Assembly,  created  a  presbytery,  and  cited  and  relied  on  prece- 
dents in  the'  years  1794,  1802,  1805,  and  1826.  If  that  body  pos- 
sesses the  power  to  erect,  it  consequently  possesses  the  power  to 
dissolve,  as  I  have  demonstrated  in  regard  to  the  erection  and  dis- 
solution of  synods. 

Your  honours  will  have  observed,  that  in  this  argument  I  have 
contended  that  these  were  acts  of  dissolution  only  so  far  as  Presby- 
terians were  concerned :  in  regard  to  Congregationalists,  they  were 
no  doubt  measures  of  expulsion.     That  these  Congregationalists 


555 

were  deservedly  obnoxious  to  expulsion,  I  believe  that  I  have  fully 
demonstrated.  That  a  great  majority  of  them  were  in  the  church 
without  any  pretence  of  right,  and  that  they  had  kept  their  station 
there  by  disguising  their  true  character,  I  think  T  also  have  demon- 
strated. The  few,  if  any,  who  justified  under  the  Plan  of  Union,  I 
think  I  have  demonstrated,  had  built  their  foundation  upon  uncon- 
stitutional grounds:  as  regards  these,  the  General  Assembly  exer- 
cised a  constitutional  power,  and  swept  away  those  whose  best  plea 
was  the  sanctity  of  venerable  error. 

Our  adversaries  have  varied  their  modes  of  attack,  and  have 
endeavoured  to  show  the  impropriety  of  what  we  have  done,  by 
showing  how  much  better  it  might  have  been  done  otherwise.  They 
say  that  these  synods  could  only  properly  be  condemned  by  regu- 
lar trial  according  to  the  forms  of  the  constitution.  On  this  pro- 
position they  have  rung  a  thousand  changes.  The  position  is  plau- 
sible and  popular.  Five  hundred  and  ninety-nine  churches,  and 
fifty  thousand  communicants,  say  they,  have  been  condemned  un- 
heard, without  an  opportunity  of  defence  !  And  they  invoke  popu- 
lar vengeance  on  the  authors  of  this  outrage.  Upon  this  high  tri- 
bunal the  civium  ardor  prava  juhentium  will  have  no  efl^ect,  and  we 
will  proceed  calmly  to  demonstrate  the  folly  of  this  charge.  We 
should,  say  they,  have  tried  these  synods  and  proceeded  to  judg- 
ment by  the  regular  methods  pointed  out  by  the  constitution.  This, 
we  say,  is  absurd.  Try  an  incorporeal  existence — a  mere  ens 
rationis!  The  constitution  contemplates  no  such  proceeding ;  its 
whole  system  of  judicature  is  aimed  at  natural  persons  capable  of 
punishment.  Suppose  a  synod  is  condemned,  punishment  cannot 
be  inflicted;  it  is  more  incorporeal  and  impassive  than  the  viewless 
air.  It  is  capable  of  being  dissolved,  it  is  discerpible,  and  may 
suffer  disintegration  of  its  component  parts ;  but  this  is  not  punish- 
ment. It  may  be  a  good  measure  of  prevention  to  destroy  it,  but  it 
is  in  no  sense  penal.  The  constitution  contemplates  process  against 
the  inferior  judicatories  of  one  kind  only,  and  that  is  in  the  nature 
of  a  mandamus,  not  to  punish,  but  to  direct  it  in  the  path  of  its  duty. 
See  Book  of  Discipline,  cap.  vii.,  sec.  1,  sec.  6. 

But,  again,  why  should  we  proceed  judicially,  when  no  offence 
or  crime  has  been  charged  upon  the  synods?  They  were  erected 
for  convenience,  and  might  be  dissolved  for  convenience.  Certain 
intruders  had  found  shelter  behind  them,  and  it  became  necessary 
to  pull  them  down  in  order  to  drive  away  these  intruders.  They 
were  infected  with  Congregationalism:  this  was  no  crime,  but  a 
disease,  which  required,  not  punishment,  but  a  remedy. 

If  our  adversaries  mean  (and  their  meaning  is  not  very  clear  on 
this  point)  that  the  process  should  be  directed  against  individual 
Congregationalists  who  had  intruded  into  our  system,  we  answer 
that  the  plan  of  process  was  intended  for  Presbyterians,  and  not 
for  intruders  from  other  denominations — for  denizens,  and  not  for 
aliens.  Besides,  such  Congregationalist  might  set  our  process  at 
defiance,  for  it  runs  not  into  Congregational  churches;  he  can  only 
be  tried  by  his  own  congregation,  and  from  their  decision  there  is 
no  appeal.     Those  who  really  came  in  under  the  Plan  of  Uuion,  if 


556 

charged  with  Congregationalism  as  a  crime,  might  plead  that  plan 
in  justification,  though,  from  its  unconstitutionality,  it  would  be  no 
bar  to  any  proceeding  for  their  removal.  Much  labour  has  been 
expended  on  either  side,  in  proving  or  disproving  that  the  General 
Assembly  possesses  legislative  powers.  If  it  were  important,  it  would 
be  easy  to  show  that,  within  a  certain  scope,  it  does  possess  those 
powers.  The  power  to  dissolve  synods  is  rather  an  administrative 
power,  if  we  were  compelled  to  give  it  a  name.  I  am  willing  to  put 
the  abrogation  of  the  Plan  of  Union  on  a  more  simple  ground.  The 
General  Assembly  was  a  party  to  the  arrangement,  and  having  dis- 
covered it  to  be  unconstitutional,  declares  itself  not  bound  by  it. 
The  same  as  an  individual  who  has  entered  into  an  illegal  compact, 
and  afterwards  discovers  its  illegality,  might  declare  himself  not 
bound  by  it.  The  illegality  of  the  compact  is  that  which  discharges 
him,  and  not  his  declaration,  which  is  but  a  promulgation  of  his 
rights. 

The  act  of  abrogation  and  the  acts  of  excision  were  in  them- 
selves mere  abstractions,  not  capable  of  being  noticed  judicially. 
It  was  not  until  some  action  took  place  under  them  that  bore  upon 
individual  or  associate  rights,  that  they  could  assume  the  form  of 
an  injury  cognizable  by  public  justice.  The  first  proceeding  in 
pursuance  of  these  acts  was  the  striking  from  the  roll  of  the  Gene- 
ral Assembly  the  names  of  the  commissioners  from  these  synods, 
and  refusing  to  count  their  votes.  What  was  this  but  tlie  judgment 
of  the  General  Assembly  upon  the  quali^cation  of  its  members;  a 
power  always  entrusted  to  representative  bodies,  and  not  denied  by 
the  constitution  to  this.  In  the  exercise  of  this  high  function,  we 
claim  for  the  General  Assembly  exemption  from  the  visitation  of 
the  ordinary  tribunals.  Your  honours,  having  ascertained  the  exist- 
ence of  the  power,  cannot  control  or  review  its  exercise. 

We  have  now  finished  the  first,  and  come  to  the  second  of  the 
great  divisions  into  which  we  assorted  our  subject,  to  wit,  the 
means  resorted  to  by  our  adversaries  to  rectify  their  supposed 
grievances. 

In  the  year  1837,  after  the  act  had  been  passed  touching  the 
Synod  of  the  Western  Reserve,  which  was  prior  to  that  concerning 
the  other  three  synods,  and  after  the  names  of  the  members  of  that 
synod  had  been  struck  from  the  roll,  an  election  was  had  to  fill  cer- 
tain vacancies  which  existed  in  the  Board  of  Trustees;  but  as  the 
members  from  this  synod  were  not  allowed  to  vote,  they  protested 
that  the  election  was  void.  They  and  the  members  from  the  other 
three  synods,  after  they  were  excluded,  also  gave  notice  to  the 
Board  of  Trustees  not  to  obey  the  drafts  or  orders  of  that  General 
Assembly,  as  it  became  by  dismemberment  a  legal  inexistence. 
Had  they  persisted  in  this  course,  the  question  of  the  validity  of 
these  acts  would  have  been  brought  before  your  honours  by  this 
proceeding;  but  they  afterwards  seemed  to  consider  such  position 
untenable,  for,  by  repeated  acts  of  great  solemnity,  they  admitted 
the  General  Assembly  of  1837  to  have  a  legal  existence  up  to  the 
hour  of  its  adjournment,  and  thereby,  as  we  think,  and  will  show  in 
the  sequel,  have  excluded,  from  this  judicial  inquiry  at  least,  any 


557 

question  as  to  the  validity  of  these  acts.  For  their  pseudo  Assembly 
in  1838,  in  electing  their  trustees,  who  are  the  relators  in  this  pro- 
ceeding, solemnly  pronounced  that  there  was  no  vacancy  in  the 
Board  of  Trustees,  which  declaration  would  have  been  untrue,  had 
the  election  of  1837,  to  which  I  have  referred,  been  void.  Besides 
this,  the  last  act  of  the  Assembly  of  1837  was  to  fix  the  time  and 
place  where  the  Assembly  of  1838  should  meet;  and  this  act  was 
the  basis  upon  which  the  pseudo  Assembly  was  built,  and  the  occu- 
pation of  that  time  and  place  was  declared  by  them  to  be  necessary 
and  essential  to  their  legal  existence.  This  was  another  distinct 
recognition  of  the  undismembered  existence  of  the  General  Assem- 
bly olf  1837. 

The  General  Assembly  is  not  perennial,  but  terminates  its  exist- 
ence with  its  session,  and  a  new  Assembly  is  called  for  the  suc- 
ceeding year,  which  is  not  a  continuation,  but  the  successor  of  the 
preceding  Assembly.  See  Form  of  Gov.,  cap.  xii.,  sec.  8.  When, 
therefore,  the  General  Assembly  of  1837  adjourned,  by  the  confes- 
sion of  our  adversaries  it  adjourned  in  its  undiminished  legal  inte- 
grity;  and  the  Assembly  of  1838  was  called  into  existence  to  run 
its  career  unaifected  by  the  acts  of  its  predecessor. 

This  view  I  think  is  important,  for  from  it  can  be  demonstrated 
that  this  inquiry  ought  to  have  been  confined  to  the  question  of 
organization  in  the  year  1838,  and  that  the  examination  into  the 
constitutionality  of  the  acts  of  1837,  was  entirely  extrinsic  to  the 
issue. 

We  have  it  in  evidence  from  the  Pastoral  Letter  of  the  New 
School  Assembly,  although  his  honour  excluded  more  direct  proof 
of  the  fact,  that  the  New  School  party  met  in  caucus  previous  to  the 
time  fixed  for  the  meeting  of  the  General  Assembly  of  1838,  to 
devise  measures  which  should  annul  the  acts  of  1837.  The  sum  of 
their  deliberations  and  designs  are  embodied  in  the  resolution,  "  that 
should  a  portion  of  the  commissioners  to  the  General  Assembly  at- 
tempt to  organize  the  Assembly  without  admitting  to  their  seats 
commissioners  from  all  the  presbyteries  recognized  in  the  organiza- 
tion of  1837,  it  will  then  be  the  duty  of  the  commissioners  present 
to  organize  the  General  Assembly  of  1838,  in  all  respects  accord- 
ing to  the  constitution,  and  to  transact  all  other  necessary  business 
consequent  upon  such  organization." 

This  resolution  is  a  key  to  the  subsequent  conduct  of  that  party, 
and  enables  us  to  understand  it  in  its  true  light,  although  our  adver- 
saries have  since  thought  proper  to  place  other  interpretations 
upon  it. 

They  say,  "that  should  a  portion  of  the  commissioners  attempt 
to  organize  without  admitting,"  &c.  This  portion  was  the  Old 
School  party,  who  had  at  the  preceding  General  Assembly  of  1837 
been  a  decided  majority,  and  afterwards  proved  to  be  so  in  that  of 
1838;  and  that  they  would  be  so,  this  caucus  most  shrewdly  sus- 
pected. Then  this  resolution  declares,  that  should  the  Old  School 
party,  being  the  majority,  attempt  to  organize  without  admitting  to 
their  seats,  &c.  all  the  commissioners — that  is,  should  they  attempt 
to  exclude  the  commissioners  from  the  four  synods — "  it  will  then 

47* 


558 

be  the  duty  of  the  commissioners  present  to  organize  in  all  respects 
according  to  the  constitution."  It  icill  be  their  duty  to  organize! 
In  otiier  words,  that  they  will  organize  according  to  their  views  of 
the  constitution!  Who  will  organize  according  to  the  constitution? 
The  commissioners  present  other  than  the  evil-disposed  portion. 
And  that  portion,  as  we  have  shown,  were  the  Old  School  party, 
and  the  majority.  It  therefore  follows  that  these  sticklers  for  the 
constitution  were  the  New  School  party  and  the  minority  ;  and  the 
whole  import  of  this  resolution,  though  obscurely  worded,  is,  that 
should  the  Old  School  party,  who  were  the  majority,  attempt  to 
carry  out  the  acts  of  1837,  by  excluding  the  commissioners  from 
the  four  synods,  the  New  School  party,  who  were  the  minority, 
would  make  another  organization,  admitting  those  commissioners, 
and  claim  to  be  the  constitutional  Assembly!  One  of  the  members 
of  this  caucus  commented  on  the  boldness  of  this  plan  by  exclaim- 
ing, "We  have  passed  the  Rubicon." 

In  order  to  understand  the  subsequent  doings  of  the  malecontent 
party,  it  is  necessary  that  I  should  call  your  attention  to  some  of  the 
rules  of  order. 

"No  commissioner  shall  have  a  right  to  deliberate  or  vote  in  the 
Assembly,  until  his  name  shall  have  been  enrolled  by  the  clerk,  and 
his  commission  examined  and  filed  among  the  papers  by  the  As- 
sembly."— For-m  of  Government,  cap.  xii.,  sect.  7. 

Standing  rules  of  order  adopted  in  the  year  1820.  See  minutes 
of  General  Assembly  of  that  year. 

I.  Immediately  after  the  Assembly  is  constituted  with  prayer, 
the  moderator  shall  appoint  a  committee  of  commissions. 

II.  The  commissions  shall  then  be  called  for,  and  delivered  to 
the  committee  of  commissions. 

III.  After  the  delivery  of  the  commissions  the  Assembly  shall 
have  a  recess,  until  such  an  hour  in  the  afternoon  as  will  afford  suf- 
ficient time  to  the  committee  to  examine  the  commissions. 

IV.  The  committee  of  commissions  shall  in  the  afternoon  report 
the  names  of  all  whose  commissions  shall  appear  to  be  regular  and 
constitutional,  and  the  persons  whose  names  shall  be  then  reported, 
shall  immediately  take  their  seats  and  proceed  to  business. 

V.  The  first  act  of  the  Assembly  when  thus  ready  for  business, 
shall  be  the  appointment  of  a  committee  of  elections,  whose  duty  it 
shall  be  to  examine  all  informal  and  unconstitutional  commissions, 
and  report  on  the  same  as  soon  as  practicable. 

In  1829,  (see  minutes  of  that  year,)  it  was  resolved  '-that  the 
permanent  and  stated  clerks  should  be  the  standing  committee  ot 
commissions,  and  that  the  commissioners  should  hand  their  com- 
missions to  said  committee  in  the  room  in  which  the  Assembly  shall 
hold  its  sessions,  on  the  morning  of  the  day  on  which  the  Assembly 
opens,  previous  to  11  o'clock. 

In  pursuance  of  these  rules  of  organization,  Messrs.  Krebs  and 
M'Doweil,  the  permanent  and  stated  clerks,  stationed  themselves  in 
the  church  in  Ranstead  court,  previous  to  the  hour  of  the  meeting 
of  the  General  Assembly  of  1838,  on  the  day  fixed  for  its  assembling 


659 

by  the  last  resolution  of  the  previous  Assembly.  The  commissions 
were  presented  to  them,  and  they  rejected  those  from  the  excinded 
synods  and  refused  to  put  them  on  the  roll.  They  considered  them- 
selves bound  by  the  authority  of  the  preceding  Assembly,  as  the 
opinion  of  the  highest  judicature  on  the  constitutionality  of  these 
commissions.  The  committee  of  commissions  is  the  primary  tribu- 
nal to  determine  on  the  constitutionality  of  the  commissions  pre- 
sented. They  had  before  them  the  decision  of  the  prior  Assembly, 
that  these  synods  were  built  upon  the  Plan  of  Union,  and  as  that 
Plan  of  Union  had  been  abrogated  the  synod  built  upon  it  had  fall- 
en to  the  ground.  To  have  disregarded  this  decision,  would  have 
been  the  height  of  arrogance.  I  do  not  think  they  were  bound  by 
the  acts  of  1837  as  instructions,  but  as  precedents,  but  it  would  seem 
that  these  commissioners  thought  otherwise.  See  printed  evidence, 
(Mr.  Krebs'  statement,  pp.  101,  102  of  this  report.) 

It  was  said  that  this  committee  were  pledged  to  carry  out  those 
acts?  But  upon  inquiry  we  find  that  a  motion  was  made  in  the 
Assembly  of  1837  to  exact  a  pledge,  but  was  afterwards  withdrawn. 
It  was  withdrawn  because  the  committee  expressed  so  strong 
an  opinion  of  their  duty,  that  a  pledge  was  deemed  unnecessary, 
and  yet  there  is  a  wide  difference  between  an  opinion,  however 
strong,  and  a  pledge.  The  one  may  be  changed,  it  may  yield  to 
proof  or  conviction  ;  the  other  is  an  inflexible  obligation  upon  the 
conscience.  If  this  committee  was  in  error,  as  to  the  power  of  the 
General  Assembly  of  1837  over  them  at  the  inceptive  organization 
of  1838,  or  if  they  decided  wrong  upon  any  other  principle  in  re- 
jecting the  commissions  from  the  four  synods,  they  being  but  an 
inferior  and  primary  tribunal,  their  decision  could  be  reviewed  by 
the  General  Assembly,  and  that  body  has  deputed  this  power  of  re- 
view to  the  committee  of  elections,  who,  says  the  fifth  of  the  standing 
rules  which  I  have  cited,  are  to  examine  such  commissions  as  have 
been  rejected  by  the  committee  of  commissions.  These  standing 
rules  direct  the  committee  of  commissions  to  put  all  constitutional 
and  formal  commissions  on  the  roll,  but  prescribe  no  other  duties, 
as  to  the  informal  and  unconstitutional  commissions,  than  to  reject 
them. 

It  is  true  a  practice  has  arisen  of  reporting  these  commissions  so 
rejected  in  a  separate  roll,  a  practice,  which  arose,  no  doubt,  when 
all  commissions  were  presented  to  the  house,  and  referred  to  the 
committee,  in  which  case,  by  parliamentary  practice,  there  must  be 
a  report  of  the  committee  upon  them  in  order  to  restore  them  to 
the  house  for  its  future  action.  This  was  a  reason  which  ceased, 
when,  under  the  new  system,  the  commissions  were  no  longer  re- 
ferred to  the  committee,  but  originally  presented  to  them  before  the 
meeting  of  the  Assembly.  Such  as  they  rejected  having  never 
been  before  the  house,  parliamentary  order  interposed  no  obstacle  to 
their  being  presented  to  the  Assembly  by  a  member,  and  referred 
by  the  Assembly  to  the  committee  of  elections.  The  stated  and 
permanent  clerks,  it  would  seem,  debated  between  themselves,  in 
this  exigency,  which  was  the  better  course,  and  concluded  by  adopt- 
ing the  latter  as  more  consonant  to  the  language  of  the  rules.     If 


560 

their  determination  arose  from  any  other  reason,  certainly  it  was 
sustainable  on  this.  I  have  spent  more  time  on  this  point  than  the 
consequences  to  which  it  leads  seem  to  warrant,  but  as  his  honour 
who  presided  at  the  trial  has  made  it  a  corner-stone  in  the  temple, 
I  could  not  well  pass  it  without  comment.  Our  adversaries  came 
to  this  Assembly  of  1838,  with  the  design  to  organize  a  minority 
Assembly,  if  the  majority  should  reject  the  commissioners  from  the 
four  synods.  Owing  to  their  unskilfulness  and  their  entire  unac- 
quaintance  with  the  rules  of  order,  their  mine  exploded  prematurely, 
that  is,  before  the  commissioners  from  these  synods  had  been  re- 
jected by  the  majority.  They,  now,  having  discovered  their  error, 
endeavour  to  give  a  new  aspect  to  their  proceedings,  and  contend 
that  the  officers  of  the  Assembly  wilfully  committed  various  faults, 
and  that  their  (our  adversaries)  proceedings  were  of  a  punitory 
character.  As  regards  the  clerks  they  could  not  say  that  they 
committed  any  crime  in  rejecting  the  commissioners  from  the  four 
synods,  because  jurisdiction  of  that  subject  belonged  to  them,  and 
therefore  they  sought  the  proof  of  crime  in  the  omission  of  the 
clerks,  to  put  them  on  the  roll  of  irregular  commissions.  They 
next  endeavoured  to  fix  crimes  upon  the  moderator.  After  the 
Assembly  had  been  opened  with  prayer,  but  before  the  roll  had 
been  reported,  Dr.  Patton  rose  with  certain  written  resolutions  in 
his  hand,  which  we  have  since  learned  pertained  to  enrolling  of  the 
commissioners  from  the  four  synods,  and  offered  to  move  these 
resolutions,  but  was  told  by  the  moderator  in  substance  that  his  mo- 
tion was  premature,  for  until  the  roll  was  reported  there  was  no 
house  to  which  a  motion  could  be  put.  In  this  reason  he  acquiesced 
and  sat  down,  and  the  propriety  of  the  moderator's  decision  seems 
admitted  in  this  argument,  and  was  conceded  by  his  honour  the 
judge,  in  his  charge  to  the  jury.  The  roll  was  then  reported  and 
ihe  moderator  made  a  call,  in  the  nature  of  a  proclamation,  for  all 
those  who  had  not  had  an  opportunityof  presenting  their  commissions 
to  the  committee  of  commissions  to  come  forward  and  do  so.  This 
is  a  practice  which  has  prevailed  ever  since  the  rule  was  enacted 
directing  the  commissions  to  be  presented  to  the  clerks  before  the 
meeting  of  the  Assembly,  and  was  intended  for  the  benefit  of 
those  who,  having  come  in  since,  had  not  had  an  opportunity  or 
those  who,  from  inadvertence  or  ignorance  of  the  practice,  had 
neglected  to  present  their  commissions  to  the  clerks.  It  was 
to  give  such  persons  an  opportunity,  I  say,  before  the  roll,  which 
was  the  only  evidence  of  a  title  to  vote,  was  pronounced  complete, 
and  to  have  the  house  ascertained,  that  this  call  was  made. 
Neither  in  its  terms  nor  its  spirit  was  it  intended  for  those 
who  had  been  rejected  by  the  clerks,  for  their  commissions  were  to 
be  passed  through  the  ordeal  of  the  committee  of  elections.  Dr. 
Mason,  however,  thought  fit  to  construe  it  to  be  an  invitation  for 
him  to  present  the  rejected  commissions.  He  was  told  by  the  mo- 
derator that  he  was  out  of  order  at  that  time;  he  appealed  to  the 
house,  he  was  told  by  the  moderator  that  his  appeal  was  out  of 
order  at  that  tune.  The  roll  was  not  then  completed ;  the  last  finish 
was  being  put  to  it;  at  least  one  commissioner  was  at  that  moment 


561 

availing  himself  of  the  moderator's  proclamation.  Until  the  roll 
was  completed,  there  was  no  organic  body  that  could  entertain  an 
appeal,  nor  until  then  could  the  presiding  officer  know  whom  to 
admit  to  vote  on  the  appeal.  Dr.  Mason  informs  us  in  his  testi- 
mony that  his  appeal  was  made  to  the  promiscuous  throng  there 
assembled,  claiming  to  be  commissioners.  His  motion  was  an  in- 
terruption of  business  then  having  possession  of  the  inorganic  body: 
I  mean  the  call  for  further  commissions  of  a  particular  class.  It 
was  an  interruption  of  the  standing  order  of  business,  which  directs 
that  the  first  act  of  the  Assembly,  after  the  roll  is  reported,  shall  be 
the  appointment  of  a  committee  of  elections;  the  most  important 
step  as  regards  the  rights  of  members,  and  on  no  pretence  to  be 
disturbed  in  its  precedence,  for  the  rights  of  many  commissioners 
may  be  held  in  suspense  until  the  tribunal  is  constituted  which  is  to 
try  their  rights.  It  must  be  conceded  that  an  appeal  may  be  out  of 
order,  and  if  so,  who  is  to  be  the  judge  of  that,  in  the  first  instance, 
but  the  presiding  officer?  And  yet  it  is  upon  this  rejection  of  Dr. 
Mason's  appeal  that  our  adversaries  now  base  their  whole  argu- 
ment, and  in  which  they  seek  the  justification  of  their  ulterior  pro- 
ceedings. The  moderator,  say  they,  committed  a  breach  of  privi- 
lege in  rejecting  the  appeal,  and  thereby  became  liable  to  removal. 
I  shall  not  notice  the  motion  of  Mr.  Squier  further  than  to  say,  that 
it  was  declared  by  the  judge,  in  his  charge,  to  have  been  properly 
rejected ;  but  we  will  proceed  to  Mr.  Cleaveland's  motion.  The 
crime,  say  our  adversaries,  was  committed  on  Dr.  Mason :  Mr. 
Cleaveland  inflicted  the  punishment.  Is  this  a  just  representation  of 
what  they  did,  of  what  they  intended  to  do,  and  of  what  they  de- 
clared to  be  the  purpose  of  their  proceedings?  Mr.  Cleaveland 
read  a  written  preamble,  obviously  prepared  before  he  came  there, 
and  thereupon  he  moved,  without  addressing  his  motion  to  the 
moderator,  himself  putting  the  motion,  that  Dr.  Beman  take  the 
chair ;  and  this  was  followed  by  a  series  of  motions,  put  in  the  same 
irregular  way,  to  appoint  a  permanent  moderator  and  clerks,  and 
to  adjourn  to  another  place.  While  all  this  was  proceeding,  the 
moderator,  who  continued  in  possession  of  the  chair,  was  endea- 
vouring to  stop  these  breaches  of  decorum  by  cries  of  order;  and 
the  majority  of  the  house  either  sat  still,  awaiting  the  subsidence  of 
the  tumult,  or  joined  in  the  moderator's  cry  of  order.  It  was  only 
the  minority,  Mr.  Cleaveland's  partisans,  the  malecontents  of  the 
New  School  party,  who  responded  to  these  motions,  and  that  in 
loud,  tumultuous  cries.  After  Mr.  Cleaveland  and  his  party  had 
retired,  or,  as  they  affect  to  call  it,  adjourned,  the  majority  re- 
mained, and  quietly  proceeded  to  the  transaction  of  business.  It  is 
claimed  for  Mr.  Cleaveland's  proceeding,  and  those  which  ensued 
and  were  based  upon  it,  that  it  was  a  regular  process  of  organiza- 
tion, commencing  by  deposing  the  moderator  and  clerks  for  misde- 
meanours in  office,  and  in  the  appointing  of  substitutes.  The  votes 
on  these  motions  were  unanimous,  or  nearly  so,  say  they,  for  the 
silence  of  the  Old  School  party  is  to  be  accounted  as  an  affirmative 
vote,  under  the  following  rule : 


562 

"  Silent  members,  unless  excused  from  voting,  must  be  considered 
as  acquiescing  with  the  majority."     Rules  for  Judicatories,  sec.  30. 

Mr.  Cleaveland,  say  they,  addressed  his  motion  to  the  house,  be- 
cause the  moderator  had  forfeited  his  office  by  the  breach  of  Dr. 
Mason's  privilege  in  refusing  to  put  his  appeal.  The  object  of  the 
motion  v^^as  to  remove  the  offending  officer ;  to  put  the  motion 
himself,  say  they,  for  his  own  removal,  would  have  been  absurd, 
and  the  most  convenient  form  for  removing  an  incumbent,  is  to 
elect  a  successor.  It  is  on  this  succession  of  sophisms,  that  our  ad- 
versaries rely. 

To  deduce  acquiescence  from  our  silence,  it  must  be  shown  that 
the  proposition  was  submitted  to  us  in  an  intelligible  form,  and  that 
we  had  reason  to  believe  that  our  assent  or  dissent  was  sought. 

We  have  proved  that  our  adversaries  had  published  that  they 
were  coming  to  organize  a  minority  assembly.  If  a  portion,  that 
is,  our  party,  should  reject,  their  party  would  organize  an  Assem- 
bly which  would  receive.  We  being  the  majority,  it  is  obvious  that 
their  intention  was  not  to  count  our  votes,  else  they  could  not  have 
organized,  for  they  would  have  been  voted  down  at  every  step. 
We  put  this  question  to  one  of  their  witnesses,  "  what  was  your  de- 
sio^n,  in  case  our  party  had  voted  on  Mr.  Cleaveland's  motion?  "His 
honour  excluded  the  question,  otherwise  a  few  words  from  the  wit- 
nesses in  reply,  must  have  settled  this  case.  He  must  have  answer- 
ed, in  consistency  with  the  caucus  resolution,  we  would  have  disre- 
garded your  vote.  Our  party,  then,  understood  there  was  to  be  an 
interruption  which  they  would  not  be  permitted  to  silence  by  a  ne- 
gative vote.  Was  there  any  thing  in  the  preamble  to  Mr.  Cleave- 
land's motion  to  undeceive  them?  It  was  in  these  words:  "That, 
as  the  commissioners  to  the  General  Assembly  for  1838,  from  a 
large  number  of  presbyteries,  had  been  refused  their  seats;  and  as 
we  had  been  advised  by  counsel  learned  in  the  law,  that  a  consti- 
tutional organization  of  the  Assembly  must  be  secured  at  this  time, 
and  in  this  place,  he  trusted  it  would  not  be  considered  an  act  of 
discourtesy,  but  merely  as  a  matter  of  necessity,  if  we  now  proceed 
to  organize  the  General  Assembly  of  1838,  in  the  fewest  words,  the 
shortest  time,  and  with  the  least  interruption  practicable.  He 
therefore  moved  that  Dr.  Beman,  of  Troy,  be  moderator,  to  preside 
till  a  new  moderator  be  chosen."  At  least,  such  is  represented  to 
have  been  the  substance  of  the  paper  in  the  New  School  minutes 
for  1838.  Its  first  statement  is,  that  a  large  number  of  commis- 
sioners had  been  refused  their  seats,  the  caucus  resolution  antici- 
pated such  an  event.  The  event,  however,  was  not  the  casus  datus 
of  the  caucus  resolution,  for  the  refusal  of  seats  was  not  by  any 
portion  of  the  commissioners,  but  by  the  clerks,  whose  act  was  not 
confirmed  by  any  portion  of  the  commissioners;  and  if  the  testi- 
mony of  the  relators'  own  witness,  Mr.  Phelps,  is  to  be  credited, 
had  the  question  been  brought  before  the  commissioners,  the  deci- 
sion of  the  clerks  would  not  have  been  confirmed.  But  this  paper 
further  proceeds  to  state:  "And  as  we  have  been  advised  by  coun- 
sel learned  in  the  law."  Who  were  we?  Certainly  not  the  Old 
School  party,  or  the  majority,  but  the  New  School  party,  the  parti- 


563 

sans  of  Mr.  Cleaveland.  They  had  consulted  counsel,  as  it  is  in 
evidence,  and  had  been  advised  as  this  paper  states.  Mr.  Cleave- 
land further  reads,  "he  trusted  it  would  not  be  considered  an  act 
of  discourtesy,  &c.,  if  ice  now  proceed  to  organize."  We  again ! 
What  we?  the  sanne  who  had  consulted  counsel,  that  is,  the  New 
School  party.  "  If  we  proceed  to  organize  with  the  least  interrup- 
tion." To  whom  is  this  interruption  for  which  he  apologizes  ?  If  this 
was  the  act  of  the  whole  body  of  commissioners,  it  was  no  inter- 
ruption!  Our  adversaries  cannot  gravely  deny,  that  their  caucus 
resolved  to  organize  a  minority  Assembly  in  a  certain  exigency, 
and  that  Mr.  Cleaveland's  motion  was  an  attempt  to  carry  out  that 
resolution;  and  that  however  strong  a  negative  vote  had  been 
given  on  his  motion  by  our  party,  he  would  have  disregarded  it,  his 
motion  having  been  addressed  solely  to  his  own  partisans.  Because 
that  exigency  had  not  arisen,  nor  the  state  of  facts  on  which 
the  advice  of  counsel  learned  in  the  law,  was  predicated,  they  now 
disingenuously,  we  think,  endeavour  to  give  it  another  aspect.  As 
our  party  understood  the  proceeding,  as  they  did;  as  their  language 
plainly  purported,  it  was  an  interrufAlon  in  which  we  had  no  part. 
It  is  not,  therefore,  fair  to  contend  that  we  assented  to  it  by  our  si- 
lence. Their  caucus  resolution  was  published,  declaring  their  in- 
tentions. Their  preface  to  their  motion  declares,  in  effect,  its  pur- 
pose to  be,  to  carry  out  that  resolution  ;  and  if  there  were  concealed, 
under  all  this,  another  meaning  and  purpose,  it  is  plain  that  we  have 
been  entrapped.  Independently  of  the  positive  purpose  evinced  by 
the  language  of  Mr.  Cleaveland,  irreconcilable  with  their  present 
pretensions,  was  there  any  collateral  intimation  given  by  him,  from 
which  a  mind,  even  not  prepossessed  by  the  declarations  of  the 
caucus,  could  have  collected  a  design  to  punish  the  moderator  for 
a  breach  of  privilege,  by  removing  him  ?  Mr.  Cleaveland  treated 
the  moderator  with  contempt,  as  a  nullity;  but  he  said  not  one 
word  about  punishment,  nor  degradation  by  removal,  nor  of  the 
violation  of  Dr.  Mason's  rights.  This  fierce  avenger,  in  the  most 
lady-like  terms,  soft  as  the  breathings  of  zephyr,  apologized  for  the 
interruption  !  He  expressly  excludes  the  interpretation  that  his  mo- 
tion was  to  remove  the  moderator,  for  an  act  of  oppression  upon 
Dr.  Mason,  by  telling  us  ihat  the  reason  of  his  motion  was,  that  a 
number  of  commissioners  had  been  refused  their  seats,  and  that  the 
object  of  it  was  to  organize  the  General  Assembly.  We  have 
scarcely  patience  to  comment  on  these  absurdities. 

If  the  rights  of  Dr.  Mason  had  been  invaded,  the  utmost  extent 
to  which  it  would  have  authorized  irregularity,  would  have  been  to 
bring  his  complaint  before  the  house,  in  plain,  intelligible  terms ;  to 
have  submitted  some  proposition  bearing  directly  upon  his  grievance, 
and  any  question  that  rose  upon  it,  should  have  been  put  to  the  house, 
(assuming  our  adversaries'  doctrine,  that  the  moderator's  implica- 
tion in  the  question  incapacitated  him  from  performing  that  func- 
tion,) by  one  of  the  clerks.  Such  has  been  the  almost  immemo- 
rial parliamentary  practice,  both  trans-Atlantic  and  cis-Atlantic. 
2d  Hatsell,  113,  211,  212;  6th  Gray,  406,  448;  Sutherland,  71,  72; 
Jefferson,  104.     Nay,  it  is  the  established  order  of  this  very  body. 


564 

See  an  instance  in  1835,  in  the  minutes  of  that  jear.  When  a 
member  rises  from  his  seat,  and  usurps  the  office  of  moderator,  no 
member  can  know  whether  it  be  a  mere  disorder,  or  an  irregular 
rity,  justified  by  necessity;  it  is  the  subject  of  opinion,  and  there 
may  be  diflerences  of  opinion ;  and  no  man  should  lose  his  vote, 
from  an  erroneous  opinion.  But  if  the  question  be  put  by  an  un- 
doubted, although  inferior  functionary,  then  it  is  a  sufficient  caution 
to  every  man,  that  he  should  vote.  But,  say  our  prolific  adversa- 
ries, the  clerks  were  implicated  in  the  crime  intended  to  be  punish- 
ed, and  would  not  have  performed  the  duty.  Did  you  try  them? 
For  the  honour  of  our  race,  both  ancient  and  modern  story  abounds 
with  instances  in  which  inclination  has  been  sacrificed  to  duty. 
Had  it  been  proposed  to  the  clerks,  though  unsuccessfully,  it  would 
have  aroused  the  attention  of  the  members  to  the  true  state  of  the 
question.  But  should  we  concede  all  the  preliminaries  necessary 
to  justify  Mr.  Cleaveland's  proceeding,  it  would  be  easy  to  show 
that  the  motion  itself  was  a  violation  of  the  established  rules  of  or- 
der. This  constitution  has  an  expedient  for  almost  every  exigency, 
and  it  provides,  particularly,  for  the  actual,  and,  as  we  conceive, 
constructive  absence  of  the  moderator,  caused  by  his  incapacity. 
In  such  case,  the  next  preceding  moderator  must  take  the  chair. 
There  were  three  moderators  present,  when  Mr.  Cleaveland  made 
his  motion,  who  had  held  the  office  more  re(;ently  than  Dr.  Beman, 
(General  Rules,  II.) 

In  chapter  xix.  sect.  11.  of  the  Form  of  Government,  it  is  said  to 
be  the  duty  of  the  moderator  "  to  propose  to  the  judicatory  every 
subject  of  deliberation  that  comes  before  them ;"  "  he  shall  give  a 
concise  and  clear  statement  of  the  object  of  the  vote ;"  he  "  shall,  in 
proper  season,  when  the  deliberations  are  ended,  put  the  question 
and  call  the  votes."  The  reverend  gentleman,  Mr.  Cleaveland,  by 
a  single  frisk,  overleaped  all  these  well-devised  constitutional  rules 
of  government.  He  proposed  to  the  judicatory,  not  the  subject  of 
deliberation,  for  it  would  be  mockery  to  call  it  so,  but  the  subject 
of  action.  He  put  the  question  and  called  the  votes.  But  although 
he  thus  usurped  the  office  and  power  of  moderator,  he  forgot  his 
duties,  for  he  did  not  wait  for  the  "proper  season,"  nor  until  "the 
deliberations  were  ended."  He  gave  no  person  an  opportunity  to 
deliberate,  that  is,  to  debate  the  question,  nor  even  to  ask  of  the 
mover  the  meaning  or  purport  of  his  motion.  He  read  the  paper, 
as  it  is  in  evidence,  with  the  trepidation  of  one  who  knew  he  was 
violating  propriety,  order,  and  decorum,  and  put  the  question  in  so 
hurried  a  manner,  as  to  forget  altogether  to  reverse  it,  or  if  he  re- 
versed it,  he  did  so  before  the  affirmative  voting  was  ended.  The 
whole  process  from  his  indecorous  interruption  to  the  tumultuous 
and  vociferous  adjournment,  occupied  from  three  to  five  minutes. 
In  this  brief  space  the  comprehensive  genius  of  these  gentlemen  de- 
posed one  moderator  and  elected  two  others;  deposed  the  stated 
and  permanent  clerks,  and  elected  two  others,  set  aside  every  rule 
and  order  of  government,  and  substituted  their  anarchical  principles 
of  necessity.  Nature  has  kindly  endowed  them  with  this  rapidity 
of  intellect;  their  new  and  revolutionary  theology  has  sharpened 


I 


565 

their  natural  faculties;  but  they  must  allow  the  dull  followers  of  the 
faith  of  their  fathers  the  time  for  deliberation  guarantied  by  the 
constitution.  They  beside  had  the  advantage  of  us:  they  came  pre- 
pared; each  had  his  part  assigned,  and  knew  his  exits  and  his  en- 
trances; but  we  read  their  conduct  only  by  the  feeble  light  of  their 
own  declarations  and  professions.  They  told  us,  from  their  caucus, 
that  they  intended  to  organize  a  minority  Assembly,  and  we  believed 
them.  Mr.  Cleaveland  told  us  the  same,  and,  as  if  to  give  us  a 
pledge  that  he  had  no  sinister  meaning,  his  words  were  written 
flown.  An  entire  disregard  of  the  ofBcers  of  the  house  and  the 
rules  of  proceeding,  treating  them  alike  as  nonentities,  assured  us 
that  their  proceeding  was  revolutionary.  And  as  there  was  no  allu- 
sion, in  all  their  proceeding,  to  the  misconduct  of  the  moderator,  to 
breaches  of  privilege  and  designs  to  punish,  we  must  be  pardoned 
our  want  of  super-human  sagacity  in  not  finding  out  all  this.  And 
we  deprecate  the  mad  injustice  which  would  make  our  silence,  un- 
der such  circumstances,  a  voting  away  of  our  dearest  rights.  Our 
adversaries  will  not  assert  that  we  designed  that  our  silence  should 
be  counted  affirmatively. 

We  have  claimed  to  be  the  majority.  All  the  relators'  witnesses 
who  were  questioned  on  the  subject,  admit,  distinctly,  that  we  were 
the  majority.  Allowing  them  the  members  from  the  four  synods, 
we,  it  is  in  testimony,  outnumbered  them  by  twenty  or  thirty.  But 
our  adversaries,  if  they  are  upheld  by  this  court,  will  have  taught 
us  the  practical  paradox,  that,  by  ecclesiastical  dexterity,  the  mi- 
nority may  be  more  numerous  than  the  majority. 

There  are  some  other  constitutional  views  which  demonstrate  the 
untenable  character  of  our  adversaries  proceeding.  The  modera- 
tor of  the  preceding  Assembly  is  required  by  the  constitution  to 
organize  that  which  succeeds,  and  it  is  manifest,  upon  a  careful 
perusal  of  the  provisions  of  the  constitution  on  this  subject,  that  he 
is  independent  of  the  inorganic  body  which  he  is  thus  moulding 
into  form.  After  he  has  completed  the  process,  he  is  removed  by 
the  election  of  a  successor.  Deliberative  bodies  have  the  power  of 
removing  the  officers  whom  they  have  created,  but  not  those  who 
derive  their  power  from  the  constitution,  independent  of  the  body 
over  whom  they  preside.  The  Assembly  of  1838  could  elect  their 
own  officers,  but  not  the  officers  of  the  Assembly  of  1837,  to  whom 
is  confided,  by  the  constitution,  the  power  to  organize.  Those 
officers  were  the  seminal  principle,  upon  the  preservation  of  which 
depended  the  reproduction  of  a  General  Assembly  in  the  year  18S8. 

It  is  also  most  apparent  that  this  constitution  has  deliberately  re- 
i'used  to  the  members  the  power  of  appeal  from  the  moderator's 
decisions  on  questions  of  order.  The  present  constitution  is  entirely 
silent  on  that  subject;  and  to  show  that  it  is  excluded,  ex  industria, 
I  will  refer  to  the  constitution  as  it  existed  before  the  amendments 
of  1821,  and  you  will  find,  in  the  Form  of  Government,  a  chapter 
entitled  "  Privilege,"  in  which  the  power  of  appeal  is  given,  edition 
of  1806.  It  was  stricken  out  in  amending  the  constitution.  Such  a 
right  cannot  be  implied,  it  must  be  express.  See  JeflTer son's  Manual, 
Sutherland's  edition,  page  116.     A  right  of  appeal  is  provided  for 

48 


566 

by  the  9th  of  certain  rules  of  order,  adopted  by  the  General  Assem- 
bly, but  this  is  no  part  of  the  constitution,  and,  as  I  have  shown,  un- 
authorized by  that  instrument.  If  I  have  succeeded  in  demon- 
strating this  position,  I  have  taken  away  from  our  adversaries  their 
great  reliance  in  argument, — the  breach  of  Dr.  Mason's  privilege 
in  refusing  his  appeal. 

Having  thus  elaborated  these  principles,  I  will  proceed  to  take  up 
the  exceptions  to  the  Judge's  charge,  one  by  one,  and  show  that 
they  are  sustained.  (Here  Mr.  H.  went  through  the  exceptions  at 
large,  see  pp.  530  to  542  of  this  report.) 

Such,  may  it  please  your  Honours,  are  the  grounds  upon  which 
we  claim  a  new  trial.  That  is  the  form  of  our  application,  but  if 
you  concur  in  any  of  the  great  principles  on  which  I  have  defended 
the  acts  of  1837,  or  condemned  the  New  School  organization  of 
1838,  your  decision  (although,  in  form,  the  grant  of  a  new  trial,) 
will  be  in  fact  a  final  determination  on  the  claim  of  the  relators. 
If  you  uphold  the  acts  of  1837,  there  will  be  peace  in  these  two  sec- 
lions  of  the  Christian  church.  If  your  decision  is  confined  to  a 
mere  condemnation  of  the  New  School  organization  of  1838,  there 
will  be  new  agitations,  and,  no  doubt,  further  belligerent  measures, 
as  much  a  reproach  to  decency  and  religion,  as  those  which  you 
shall  have  condemned.  Our  adversaries  say  that  their  design  is 
union,  and  that  they  are  endeavouring,  by  force,  to  throw  around 
us  the  arms  of  their  fraternal  affection.  In  this  they  cannot  be  sin- 
cere ;  they  know  that  your  sentence  of  reunion  in  regard  to  ingre- 
dients that  are  immiscible,  could  not  be  carried  into  operation,  and 
that  such  a  sentence  would  compel  us  to  abandon  to  them  all  the 
offerings  which  our  pious  fathers  have  placed  on  the  altar  of  reli- 
gion. Confirm  this  necessary  separation,  and  each  party  will  ulti- 
mately go  on  its  way  rejoicing;  for  our  adversaries,  after  the  first 
pains  of  defeat  have  subsided,  will  recognize  this  Court  as  a  means, 
in  the  hands  of  Providence,  to  arrest  their  further  progress  in  the 
paths  of  error. 

Mr.  Hubbell  having  closed  his  argument  on  Friday,  occupying 
three  days  instead  of  two,  as  stated  by  mistake  on  page  542,  the 
Court  adjourned  to  Monday  morning. 

ARGUMENT  OF  WILLIAM  M.  MEREDITH,  ESa. 
Occupying  Monday  and  the  morning  of  Tuesday,  the  22d  and  23d  of  April. 

Mr.  Meredith  said :  It  has  been  stated  by  the  learned  counsel  for 
the  defendants,  that  the  property  under  the  control  of  the  General 
Assembly  amounts  to  one  hundred  and  seventy  thousand  dollars,  or 
thereabouts;  and  he  seems  to  consider  that  this  circumstance  gives 
an  importance  to  this  cause  which  it  might  not  otherwise  have.  I 
beg  leave  to  differ  from  him.  If  the  property  at  stake  here  were  of 
the  most  trifling  value,  the  importance  of  this  cause  would  not  be 
diminished.  Considerations  of  property  are  of  slight  importance  in 
comparison  with  rights  such  as  those  of  which  the  relators  here 
seek  the  restoration.  They,  and  many  of  those  whom  they  repre- 
sent, by  the  lawless  acts  of  the  party  to  which  the  defendants  are 


567 

attached,  have  been  excluded  from  the  enjoyment  of  all  their  eccle- 
siastical, and  some  of  their  most  valued  civil  personal  rights,  as 
well  as  from  all  share  in  controlling  the  management  and  appropri- 
ation of  the  funds  in  question,  in  which  it  cannot  be  denied  that  they 
have  an  interest.  The  relators  do  not  desire  to  exclude  their  adver- 
saries from  the  full  enjoyment  of  all  their  rights  of  person  and  pro- 
perty. We  have  excommunicated  nobody.  We  wish  to  lake  away 
the  property  of  nobody.  We  merely  desire  to  be  left  in  the  peace- 
able and  unmolested  enjoyment  of  the  rights  which  we  hold  in 
common  with  all  the  other  members  of  the  Presbyterian  Church. 

This  case  is  in  two  respects  quite  unprecedented;  first  in  the  ex- 
traordinary number  of  the  exceptions  which  have  been  taken  to  the 
law  as  laid  down  by  the  learned  Judge  who  sat  at  Nisi  Prius;  and 
secondly,  in  the  fact  that  in  the  argument  on  these  exceptions,  not 
a  single  authority  has  been  produced  from  any  elementary  work  or 
book  of  reports.  One  or  two  citations  from  Hatsell,  Jefferson,  and 
Gray's  Debates,  are  all  with  which  we  have  been  favoured.  It  is 
obvious,  therefore,  that  our  learned  opponents  have  found  no  sup- 
port in  the  common  law,  in  the  law  of  the  land,  for  the  principles 
which  they  are  asking  a  court,  bound  to  administer  that  law,  to 
apply  in  the  decision  on  a  civil  right  created  and  existing  under  it. 

By  the  charter  of  the  corporation  here  in  question,  the  General 
Assembly  of  the  Piesbyterian  Church  is  authorized  at  discretion  to 
change  one-third  of  the  members  of  the  corporation.  The  General 
Assembly  itself  is  not  incorporated.  The  relators  allege  that  the 
General  Assembly  of  1838  did  lawfully  elect  them  in  place  of  the 
defendants,  and  thereby  amoved  the  defendants  from  their  office 
and  franchise  as  trustees.     On  this  fact  issue  is  taken. 

It  is  not  denied  that  the  relators  were  elected,  and  the  defen- 
dants thereby  amoved,  in  due  form,  by  the  vote  of  a  body  claim- 
ing to  be  the  General  Assembly,  and  sitting  at  the  Presbyterian 
church  on  Washington  square.  But  the  defendants  allege  that  the 
body  in  question  was  not  the  General  Assembly,  but  that  the  true 
General  Assembly  was  another  body,  sitting  at  the  Tabernacle  in 
Ranslead  court. 

It  may  be  well  to  state  once  for  all,  that  the  Court  is  to  decide  in 
this  case  on  the  civil  rights  of  the  parties  under  the  charter  of  in- 
corporation granted  by  the  commonwealth.  We  have  nothing  to 
do  with  questions  of  theology. 

The  rights  of  electing  members  of  the  corporation  and  controlling 
the  application  of  its  funds,  are  in  the  strictest  sense  civil  rights,  and 
are  entitled  to  the  protection  of  the  laws  of  the  land. 

You  cannot  refuse  to  determine  the  question  of  the  election  of  the 
relators.  That  determination  depends  on  the  qualifications  of  the 
body  of  electors;  and  as  that  body  is  not  itself  incorporated,  and 
cannot  be  made  a  party,  the  identity  of  the  body  itself,  as  well  as 
the  rights  of  individual  electors,  are  legitimate  subjects  of  inquiry  in 
trying  the  rights  of  the  elected.  (Symmers  m.  Regem,  Cowp.  489. 
Townsend's  case,  T.  Raym.  69.) 

It  is  necessary  to  understand  the  general  frame  of  the  church 
government,  so  far  as  it  concerns  the  General  Assembly,  to  which 


568 

certain  powers  are  given  by  the  charter.  The  General  Assen^bly 
has  the  right  of  electing  members  of  the  corporation,  but  is  itself  a 
delegated  and  temporary  body,  sitting  annually,  and  composed  of 
representatives  from  the  several  presbyteries  connected  with  the 
church. 

The  presbyteries  again  are  respectively  com[)osed  of  all  the 
ministers,  and  a  delegation  of  elders  from  the  respective  church 
sessions  within  certain  territorial  limits.  The  church  session  con- 
sists of  the  pastor  of  the  particular  church,  and  the  elders  elected 
by  the  members  of  the  same,  and  holding  their  offices  for  life. 

A  synod  is  composed  of  all  the  ministers,  and  a  delegation  of 
elders  from  the  respective  church  sessions,  within  certain  territorial 
limits,  embracing  the  territory  of  at  least  three  presbyteries.  The 
presbyteries,  but  not  the  synods,  are  represented  in  the  General 
Assembly,  which  is,  indeed,  composed  of  a  delegation  from  the  seve- 
ral presbyteries. 

The  lowest  judicatory  is  the  church  session ;  from  its  decision  an 
appeal  lies  to  the  presbytery;  from  tlie  presbytery  to  the  synod; 
and  from  the  synod  to  the  General  Assembly,  which  is  the  highest 
judicatory  of  the  church. 

The  case  of  the  relators  may  be  thus  stated  : 

1.  That  there  were  in  1837,  twenty-eight  presbyteries  (composing 
the  four  synods  of  Utica,  Geneva,  Genessee,  and  the  Western  Re- 
serve,) to  which  were  attached  sixty  thousand  communicants  and 
six  hundred  ministers  of  the  church.  That  these  presbyteries  form- 
ed part  of  the  church,  and  were  entitled  to  be  represented  in  the 
General  Assembly. 

2.  That  the  General  Assembly  of  1837  attempted  to  disfranchise 
these  presbyteries,  and  all  the  ministers  and  members  of  the  church 
within  their  bounds,  and  excluded  their  representatives  from  the 
Assembly,  by  the  passage  of  resolutions  which  were  wholly  null 
and  void. 

3.  That  the  moderator  and  clerks  of  the  Assembly  of  1837,  at 
the  opening  of  the  Assembly  of  1838,  attempted  to  carry  out  these 
resolutions,  and  in  this  and  other  respects  were  guilty  of  official 
misconduct. 

4.  That  the  moderator  and  clerks  were  therefore  lawfully  and 
regularly  removed,  and  others  appointed  in  their  places,  by  votes 
of  the  body  duly  taken. 

On  the  other  hand,  the  defendants  allege: 

1.  That  the  presbyteries  in  question  were  never  regularly  attach- 
ed to  the  church,  but  came  in  under  an  act  of  the  General  Assem- 
bly, called  the  Plan  of  Union,  passed  in  1801,  which  act  they  say 
was  unconstitutional. 

2.  That  the  act  of  union  was  lawfully  abrogated  by  the  Assembly 
of  1837,  and  that,  by  virtue  of  thai  abrogation,  the  twenty-eight 
presbyteries  were  out  of  the  church. 

3.  That  the  moderator  and  clerks  of  1837  were  not  guilty  of  mis- 
conduct in  the  proceedings  at  the  meeting  of  the  Assembly  of  1838. 

4.  That  the  moderator  and  clerks  were  not  removed  by  votes  of 
the  Assembly  of  1838. 


569 

1.  It  was  fully  proved  at  the  trial,  that  the  twenty-eight  presby- 
teries which  were  excinded,  were  regularly  attached  to  the  Presby- 
terian Church.  We  showed  this,  J.  By  the  acts  of  the  General 
Assembly  erecting  these  presbyteries,  at  various  periods  from  the 
year  1802  downward.  The  new  presbyteries  were  in  all  cases 
formed  by  dividing  presbyteries  already  existing. 

2.  The  twenty-eight  presbyteries  were,  from  the  times  of  their 
respective  organizations,  regularly  represented  in  the  General  As- 
sembly, and  contributed  to  the  funds  of  the  church. 

3.  When  the  new  constitution  of  the  church  was  adopted  in  1821, 
all  these  presbyteries  (except  a  few  not  then  erected)  voted  on  the 
question  of  adopting  it. 

As  to  the  twenty-eight  excinded  presbyteries  and  their  consti- 
tuent parts,  we  showed  that  they  were  in  exactly  the  same  situa- 
tion as  any  other  members  of  the  church ;  and  that  even  if  the  act 
of  union  of  1801  had  provided  for  admitting  persons  not  Presbyte- 
rians into  the  church,  the  bodies  in  question  did  not  come  in  under 
any  such  provision. 

But  in  fact  the  act  of  union  made  no  such  provision.  That  act 
provided  that  Presbyterian  ministers  might  become  pastors  of  Con- 
gregational churches,  and  that  Presbyterian  congregations  might 
call  Congregational  ministers  as  pastors,  without  incurring  the  cen- 
sure of  the  Presbyterian  Church.  It  further  provided  that,  in  cer- 
tain cases  of  appeal,  a  delegation  from  the  standing  committee  of  a 
mixed  church,  composed  in  part  of  Presbyterians  and  in  part  of 
Congregationalists,  might  sit  in  the  presbytery.  There  was  never 
a  mode  in  which  any  individual  could  come  into  the  Presbyterian 
Church  under  the  act  of  union. 

The  Assembly  of  1837  abrogated  that  act  of  union,  declaring  it 
unconstitutional.  Whether  it  were  so  or  not,  is  a  question  which 
does  not  concern  us  so  much  as  Dr.  Green  and  the  other  fathers  of 
the  church,  who  passed  it.  Whether  it  were  just,  by  a  sudden  abro- 
gation, to  destroy  the  connexions  which  had  for  many  years  existed 
between  Presbyterians  and  Congregationalists  under  it,  is  a  ques- 
tion which  the  majority  of  the  Assembly  of  1837  probably  consi- 
dered and  resolved  to  their  own  satisfaction.  But  when  they  pro- 
ceeded to  declare  that  by  virtue  of  that  abrogation,  twenty-eight 
presbyteries,  including  sixty  thousand  members  and  GOO  ministers 
of  the  church,  were  out  of  her  communion,  they  exceeded  their 
own  powers  and  trampled  on  our  rights. 

It  has  been  faintly  argued  on  the  other  side,  that  the  resolutions 
of  1837  did  not  profess  to  exclude  us  from  the  church,  because  they 
provided  that  all  who  were  strictly  Presbyterian  in  doctrine  and 
order,  might  apply  to  adjoining  presbyteries,  and  be  admitted  to 
connexion  with  them.  So  might  a  person  who  had  been  a  heathen, 
a  Mussulman,  a  Jew,  a  Brahmin,  or  even  a  Congregationalist. 

To  allege  that  these  resolutions  did  not  purport  to  exclude  us 
entirely  from  the  church,  is  a  proposition  too  glaringly  unfounded 
to  require  confutation.  The  allegation  shows  nothing  but  the  con- 
sojousness  of  wrong. 

48* 


570     - 

We  say  that  these  resolutions,  so  far  as  they  proposed  so  to  ex- 
clude us,  were  null  and  void. 

The  powers  of  the  General  Assembly  are  to  be  ascertained  by 
reference  to,  1st,  the  constitution  and  form  of  government  of  the 
Presbyterian  Church;  2d,  the  law  of  the  land. 

1.  By  the  constitution  of  the  church,  the  General  Assembly  is 
the  highest  judicatory,  but  its  powers  are  not  unlimited.  No  mem- 
ber or  body  of  the  church  can  be  censured  or  excluded  without  an 
ofience  charged,  notice,  and  the  opportunity  of  a  hearing  and  fair 
trial.  (Mr.  M.  here  cited  several  passages  from  the  Form  of  Go- 
vernment, particularly  cap.  iv.,  v.,  and  xii. ;  and  from  the  Digest, 
particularly  sec.  5,  on  page  323,  given  on  pages  37  to  40  and  15fi 
of  this  report.) 

Now,  the  twenty-eight  excinded  presbyteries  were  charged  with 
the  offences  of  Congregationalism  and  gross  disorders,  or  they  were 
not.  If  they  were,  they  were  entitled  to  notice  and  a  hearing, 
which  it  is  not  pretended  they  had.  If  they  were  not,  then  all 
excuse  for  the  proceedings  of  the  Assembly  of  1837  is  abandoned. 

It  is  in  vain  for  our  opponents  to  say  that  judicatories  cannot  be 
cited  and  tried.  If  they  cannot,  their  members  can  be.  But  it 
would  be  tedious,  'tis  said,  to  try  them  individually;  nay,  even  to 
select  among  the  several  presbyteries  those  which  were  perfectly 
sound  in  the  faith,  (and  it  is  acknowledged  there  were  some,)  was 
too  laborious  a  duty  for  these  fathers  of  the  church,  the  Assembly 
of  1837.  What  shepherds  are  these,  who,  on  a  suspicion  that  there 
are  goats  in  the  flock,  drive  the  whole  body  of  sheep  out  of  the  fold, 
because  the  task  of  discrimination  is  irksome!  Do  they  expect  to 
be  thus  judged  ? 

But  in  point  of  fact,  judicatories  may,  by  the  usages  of  the  church, 
be  cited  and  tried;  nay,  this  very  Assembly  of  1837  had  instituted 
proceedings  to  cite  and  try  these  very  judicatories,  which,  with  alJ 
their  members,  they  afterwards  ejected  without  trial.  We  have 
their  own  formal  and  solemn  acts  in  direct  contradiction  to  the 
arguments  here  used  on  their  behalf.  It  is  true  they  afterwards 
abandoned  the  judicial  proceeding  by  citation,  and  resorted  to  ano- 
ther, in  imitation  of  their  respectable  predecessors,  who  dropped 
the  impeachment  against  Lord  Stafford,  and  brought  in  a  bill  of 
attainder;  but  the  reason  was  in  both  cases  virtually  the  same,  not 
that  an  impeachment  would  not  lie,  but  that  the  defendants  were 
likely  to  be  acquitted. 

The  General  Assembly  of  1837  had  no  warrant  then  for  their  pro- 
ceedings in  the  constitution  and  form  of  government  of  the  church. 
They  violated  all  law  and  all  precedent. 

If  the  excluding  resolutions  be  tested  by  the  principles  of  the 
common  law,  the  result  is  the  same.  Our  law  knows  of  no  dis- 
franchisement, unless  for  sufficient  legal  cause  and  after  a  fair  trial. 
(Baggs'  Case,  11  Rep.  99.  Comm.  vs.  St.  Patrick's  Society,  2  Binn. 
448.     Comm.  vs.  Guard's  Poor,  6  S.  and  R.  469.) 

In  Symmers  vs.  Regem,  (Cowp.  489)  the  common  council  had 
undertaken  to  disfranchise  for  defect  of  qualification,  nineteen  of  their 
own  body,  who  held  under  an  election  had  ten  years  before.     At  a 


571 

corporation  election  subsequently  held,  the  Mayor  rejected  the  votes 
of  the  persons  thus  excinded.  Lord  Mansfield,  speaking  of  the  ar- 
gument in  support  of  the  rejection  of  the  votes  of  these  persons  says, 
(p.  502,)  "The  next  ground  is  that  they  had  been  disfranchised; 
that  the  disfranchisement  was  still  in  force,  and  their  restoration 
not  till  after  the  election.  As  to  this  objection,  a  great  deal  depends 
upon  the  use  of  the  word  disfranchisement;  otherwise  it  creates  a 
confusion.  But  on  looking  into  it,  this  is  no  disfranchisement,  nor 
is  there  a  pretence  for  calling  it  so;  but  it  is  doing  that  which  the 
common  council  had  not  the  semblance  of  a  right  to  do;  taking 
upon  themseles  to  judge  of  the  validity  of  an  election  ten  years  be- 
fore, and  to  declare  it  nw// and  void  for  want  of  a  qualification  at 
that  time.  The  word  "  disfranchisement,"  signifies  taking  a  fran- 
chise from  a  man  for  some  reasonable  cause  ;  which  they  do  not  do, 
but  only  say  they  never  were  common  council  men.  What  authori- 
ty have  the  common  council  to  do  that?  None.  It  could  be  done 
only  by  information  in  the  nature  of  a  quo  ivarranto.  But  suppose 
it  had  been  a  disfranchisement,  how  does  it  appear  to  the  court 
that  the  common  council  have  a  right  to  disfranchise?  It  is  inci- 
dent to  the  corporation  at  large  to  disfranchise,  but  not  to  a  select 
body.  It  does  not  follow  that  the  select  body  who  has  a  right  to 
elect,  has  from  thence  a  right  to  disfranchise.  But  the  fact  is,  it  is 
no  disfranchisement  at  all." 

By  the  constitution  of  the  church,  and  the  law  of  the  land,  the  ex- 
cinding  resolutions  were  absolutely  null  and  void.  The  answer 
w^hich  is  attempted  to  all  this,  that  the  resolutions  were  not  judicial 
acts,  amounts  to  nothing.  Though  passed  by  a  body,  purporting  to 
be  a  judicatory,  they  were  not  in  form  or  in  substance  judicial,  and 
that  is  exactly  what  we  complain  of.  They  professed  to  do  without 
notice,  trial,  or  judgment,  that  which  by  law  could  not  be  done 
without  all  these.  As  corporate  acts  they  would  be  therefore  void. 
As  acts  of  a  body  so  connected  with  a  corporation,  as  to  make  the 
rights  of  its  members  the  legitimate  subject  of  judicial  consideration, 
they  are  equally  void.  No  man,  I  think,  will  deny  that  when,  as  in 
this  case,  the  title  of  the  corporators  depends  on  the  acts  of  a  body 
like  the  General  Assembly,  the  court  will  apply  to  these  acts  by 
analogy  the  same  rules  which  would  be  applied  to  the  acts  of  a 
corporate  body,  founded  as  these  rules  are  in  justice  and  common 
sense,  and  supported  as  they  are  here  by  the  provisions  of  the  con- 
stitution of  the  General  Assembly  itself,  and  the  form  of  government 
of  the  church. 

It  has  been  said,  that  by  the  constitution,  the  General  Assembly 
has  express  power  to  erect  presbyteries,  and  may  therefore  dissolve 
them  ;  since  the  same  power  which  can  create,  can  also  destroy. 
That  is  universally  true  of  none  but  the  Almighty  povi^er.  Lord 
Mansfield's  opinion,  above  quoted,  is  a  sufficient  answer  to  the  pro- 
position as  applied  to  such  a  body  as  the  General  Assembly.  Be- 
sides, if  they  could  dissolve  presbyteries  at  pleasure,  they  did  not 
dissolve  these,  but  ejected  all  their  ministers  and  members  from  the 
church,  which  is  a  very  different  thing. 

There  is  another  view  of  this  subject,  which  has  been  hinted  at, 


572 

and  which  I  will  proceed  to  consider.  It  looks  to  a  justification  of 
the  excinding  resolutions,  as  a  high  act  of  legislation,  necessary  for 
the  preservation  of  the  church  in  its  purity,  and  therefore  above  all 
ordinary  rules  and  limitations.  We  are  so  prone  in  this  country  to 
political  metaphysics,  that  I  can  scarcely  wonder  that  even  in  this 
case  we  are  invited  to  discuss  them. 

Supposing  the  Assembly  to  have  been  a  body  with  general 
legislative  powers  unlimited,  except  where  express  limitations  are 
imposed,  (instead  of  being  a  mere  judicatory  with  limited  and  enu- 
merated powers,)  I  deny  that  they  would,  even  in  that  case,  have 
any  right  to  exclude  a  presbytery  and  its  members  by  a  legislative  act. 

The  Assembly  is  a  body  composed  of  the  delegates  of  the  presby- 
teries. The  presbyteries  were  organized  bodies  before  the  Gene- 
ral Assembly  came  into  existence,  and  it  was  originally  established 
by  the  act  of  these  presbyteries.  By  the  constitution,  as  adopted  by 
the  presbyteries,  it  is  provided  that  no  constitutional  rule  shall  be 
adopted  by  the  General  Assembly  without  the  formal  consent  of 
the  majority  of  the  presbyteries  first  obtained,  and  the  constitution 
secures  to  each  presbytery  a  representation  as  such  in  the  General 
Assembly.  When  a  portion  of  the  territory  forming  one  presbytery 
is  divided  by  the  General  Assembly  in  the  prescribed  mode,  and  the 
two  parts  erected  into  distinct  presbyteries,  each  retains  in  its  new 
organization  all  the  rights  which  had  previously  appertained  to  the 
old  presbytery,  and  each  stands  on  exactly  the  same  footing  as  if  it 
had  had  a  separate  existence  when  the  constitution  was  formed  and 
had  become  a  party  to  it.  In  fact,  almost  all  the  excinded  presbyte- 
ries were  already  formed,  and  voted  on  the  constitution  of  1821.  It 
is  further  to  be  observed  that  a  General  Assembly  is  not  essential  to  a 
Presbyterian  Church.  Such  a  church  may  be  composed  of  a  single 
presbytery,  and  be  a  true,  genuine  Presbyterian  Church.  For 
many  years  there  were  two  Presbyterian  churches  in  this  country, 
consisting  of  the  two  disconnected  presbyteries  of  Philadelphia  and 
New  York,  by  whose  subsequent  union  the  present  Presbyterian 
Church  was  formed.  It  is  to  be  remarked,  also,  that  the  efl^ects 
and  consequences  of  the  excinding  resolutions,  if  valid  in  the  sense 
contended  for  by  the  defendants, are  manifold,  viz:  1.  That  the  ex- 
cinded presbyteries  lose  their  right  to  participate  in  the  exercise  of 
the  corporate  franchise,  and  their  interest  in  the  common  property. 
The  right  of  electing  members  of  the  corporation  is  a  corporate 
franchise,  though  the  body  to  which  it  is  granted  be  not  a  corporate 
body.  The  non-excinded  presbyteries,  on  this  hypothesis,  retain  to 
themselves  the  exclusive  possession  and  enjoyment  of  this  franchise 
and  of  the  common  property. 

2.  That  the  excinded  presbyteries  and  their  constituent  parts  cease 
to  be  members  of  the  Presbyterian  Church,  and  all  property  given 
to  or  held  by  them,  or  any  of  their  constituent  parts,  as  members  of, 
or  for  the  use  of  the  Presbyterian  Church,  is  diverted  from  them  and 
subjected  to  the  exclusive  controul  of  the  non-excinded  presbyteries. 

The  question  is.  Are  the  excinding  resolutions  valid  as  legislative 
acts  of  the  General  Assembly? 

We  contend  that  they  are  not.     That  neither  the  General  Assem- 


573 

bly,  nor  a  majority  of  the  presbyteries  themselves,  could  exclude  a 
single  presbytery  on  the  footing  contended  for  on  the  other  side. 

By  the  constitution  of  the  church,  the  General  Assembly  is  pro- 
hibited from  adopting  any  new  constitutional  rule,  without  having 
first  obtained  the  consent  of  a  majority  of  the  presbyteries  thereto. 
It  is  on  this  ground  that  the  defendants  maintain  the  invalidity  of  the 
Plan  of  Union  of  1801.  Grant,  for  the  sake  of  the  argument,  the 
truth  of  all  they  have  said  on  this  subject.  But  by  the  same  con- 
stitution, the  presbyteries  are  the  sole  judges  of  the  propriety  of  ad- 
mitting members  into  the  church,  and  the  Assembly  has  full  authori- 
ty to  erect  new  presbyteries.  It  cannot,  therefore,  with  any  show  of 
reason  be  said  that  the  acts  of  the  Assembly  for  dividing  old  pres- 
byteries and  erecting  their  several  parts  into  new  and  distinct  ones, 
"were  invalid  or  unconstitutional.  In  the  authority  to  erect  new 
presbyteries,  is  necessarily  included  the  right  of  deciding  on  the 
qualifications  of  the  parties,  and  the  decision  of  the  General  Assem- 
bly on  that  subject  is  final  and  conclusive,  as  far  as  concerns  the 
validity  of  the  establishment  of  the  new  presbyteries.  Suppose, 
therefore,  that  these  presbyteries  were  composed  of  Congrega- 
tionalists,  they  would  still  be  lawfully  constituted  presbyteries,  and 
would  retain  their  rights  as  such  until  they  should  be  excluded  b}-- 
a  judicial  sentence.  Is  or  is  not  a  legislative  act,  excluding  certain 
presbyteries  from  all  participation  in  the  Assembly,  the  adoption  of 
a  new  constitutional  rule?  The  constitution  provides  that  a// the 
presbyteries  shall  be  represented  in  the  Assembly,  and  a  provision  that 
one  or  more  of  them  shall  not  be  so  represented  is  not  only  a  new  pro- 
vision, but  is  wholly  inconsistent  with  the  terms  of  the  constitution. 

Again :  Grant  the  Assembly  to  possess  indefinite  legislative  powers ; 
grant  that  they  may  destroy  their  own  contracts,  tear  asunder  pas- 
toral relations  existing  for  thirty-five  years  under  their  sanction, 
stigmatize  the  fathers  of  their  chur'ch  as  the  authors  of  "an  unna- 
tural and  unconstitutional  Plan  of  Union,"  or  do  any  thing  else 
which  passion  or  prejudice  may  cloak  under  the  name  of  self-pre- 
servation, there  is  still  one  thing  which  even  in  this  hypothesis  they 
cannot  do.  As  a  delegated  body,  they  cannot  destroy  their  own 
constituencies;  they  cannot  abrogate  the  contract  under  which  they 
sit,  and  from  which  alone  they  derive  whatever  of  authority  they 
possess.  To  say  that,  even  as  regards  themselves,  they  have  no 
right  to  do  this,  is  merely  to  say  that  the  right  of  self-preservation 
must  run  mad  before  it  can  include  that  of  self-destruction.  When 
I  agree,  that  a  man  or  body  of  men  may,  in  case  of  necessity,  do 
almost  any  thing  to  preserve  their  lives,  I  must  except  suicide.  But 
I  go  further  than  denying  their  right,  I  say  they  cannot  do  it.  They 
may  refuse  to  perform  their  own  duties  as  delegates,  but  they  can- 
not destroy  the  compact  made  between  the  presbyteries,  and  to 
which  the  presbyteries  are  the  only  parties.  Notwithstanding  their 
attempt  the  compact  remains  in  full  force  and  vigour. 

The  attempt  itself  is  an  effort  to  revolutionize,  and  not  to  admi- 
nister, the  government  of  the  church.  In  a  civil  government  it 
would  be  revolution  or  rebellion,  as  thereafter  might  be.  But  the 
right  of  revolution  or  rebellion  is  too  valuable  to  be  granted  away  to 
a  private  corporation. 


574 

If  the  majority  of  the  electors  of  trustees  of  the  General  Assembly 
of  the  Presbyterian  Church,  could,  by  a  revolutionary  measure,  de- 
prive the  minority  of  their  interest  in  the  joint  property  to  the  amount 
of  one  hundred  and  seventy  thousand  dollars,  we  might  have  boards 
of  directors  appropriating  the  corporate  funds  to  themselves  under 
declarations  of  independence,  and  stockholders  taking  away  their 
fellow  stockholders'  shares  of  the  dividends,  by  voting  themselves 
in  a  state  of  permanent  insurrection.  Unfortunately  for  the  defend- 
ants, corporations  are  not  states.  In  political  revolutions,  the  parties 
trust  in  their  own  arms  and  appeal  to  the  judgment  of  heaven  ;  but 
in  corporation  contests,  they  must  trust  in  mesne  process,  and  appeal 
to  the  laws  of  the  land.  Political  necessity  is  a  phrase  sometimes 
used  to  excuse  a  dishonest  act  perpetrated  by  bodies  which  are 
beyond  control;  but  corporations  and  individuals  are  not  beyond 
control,  and  courts  of  justice  are  expressly  instituted  to  restrain 
them  from  coups  d'etat. 

Could  the  common  council  of  a  city,  where  the  respective  wards 
send  members  to  that  body,  exclude  certain  of  the  wards  from  the 
city,  and  deprive  their  representatives  of  their  seats  in  the  council? 
The  attempt  would  be  wholly  absurd,  and  any  resolution  for  effect- 
ing it  would  be  absolutely  null  and  void.  At  the  next  election  the 
excinded  wards  would  elect  their  members  as  usual,  and  these 
members  would  have  precisely  the  same  right  to  take  their  seats  in 
council  as  those  from  any  other  part  of  the  city.  Yet,  absurd  as 
such  an  attempt  would  be  on  the  part  of  a  city  council,  it  seems 
precisely  analogous  to  the  course  pursued  by  the  General  Assembly, 
and  here  gravely  defended  as  just,  lawful  and  meritorious. 

If  congress  should  pass  an  act,  excluding  a  state  from  the  union 
and  her  representatives  from  congress,  or  declaring  the  minority  to 
be  the  state  and  that  the  representatives  of  the  minority  should  sit 
in  congress,  such  an  act  would  be  merely  void  of  all  legitimate 
effect.  The  citizens  of  the  excinded  state  would  still  rightfully  hold 
their  elections  and  the  members  elected  by  the  majority  would  be 
entitled  to  sit  in  congress. 

The  government  may  be  dissolved,  and  a  new  one  established ; 
but,  short  of  that,  none  of  these  things  can  be  done  without  the 
consent  of  the  parties  to  be  affected,  or  an  act  of  some  wholly 
superior  legislative  power.  It  would  be  of  no  importance,  in 
what  manner  the  excinded  state  had  originally  come  into  the 
Union,  whether  rightfully  or  wrongfully,  for  acquiescence  makes 
right.  Should  congress  declare  the  state  of  Louisiana,  for  instance, 
to  be  no  longer  a  member  of  the  Union,  because  the  act  for  her  ad- 
mission was  unconstitutional,  the  declaratory  act  would  be  merely 
void.  Should  any  of  the  states  successfully  adhere  to  the  act  of 
congress,  they  would  be  seceders  from  the  Union,  and  those  states 
which  should  refuse  to  adhe^re  to  such  an  act,  and  whose  represen- 
tatives should  continue  to  sit  with  those  of  Louisiana,  would  be  the 
rightful  successors  of  the  present  government  of  the  United  States, 
as  Rehoboam's  kingdom  continued  to  be  the  true  kingdom  of  David, 
though  ten  tribes  out  of  the  twelve  had  seceded.  On  every  ground, 
therefore,  I  repeat  that  the  excinding  resolutions  of  1837,  were 
merely  null  and  void. 


575 

The  presbyteries  themselves  could  not  exclude  one  of  their  num- 
ber. The  two  presbyteries  of  Philadelphia  and  New  York,  were  at 
one  time  united  in  a  synod,  and  afterwards  separated,  in  conse- 
quence of  party  divisions  sonnewhat  similar  to  those  which  now 
prevail.  When  these  presbyteries  united  in  a  synod,  they  formed 
one  government,  just  as  the  church  now  does,  or  was  designed  to 
do,  under  the  General  Assembly.  Could  one  of  these  presbyteries, 
or  its  representatives  in  the  synod,  have  excluded  the  other,  retain- 
ed the  name  of  the  synod  and  the  common  property,  and  taken  the 
property,  held  by  the  other  for  the  Presbyterian  Church '(  Such  an 
act  of  robbery  and  fraud  was  never  contemplated  by  the  venerable 
men  who  controlled  rhe  parties  in  the  church  at  the  time  of  the  first 
separation.  When  the  two  presbyteries  found  that  they  could  not 
agree  in  union,  they  agreed  to  separate;  dissolved  the  government 
which  they  had  formed  into  its  original  elements,  and,  instead  of  one 
synod,  there  were  again  two  presbyteries,  neither  of  them  pretend- 
ing to  be  the  exclusive  successors  of  the  former  synod. 

Why  could  not  so  just  and  righteous  an  example  have  been  fol- 
lowed now  1  It  is  true,  the  common  property  is  now  of  greater 
amount,  and  offers  a  larger  prize  to  ambition  or  cupidity.  The 
temptation  to  err  is  thus  increased,  and  therein  lies  the  whole  dif- 
ference between  the  two  cases.  If  the  Old  School  presbyteries 
could  no  longer  meet  their  brethren  in  harmony,  they  might  leave 
them,  and  form  a  new  organization  of  their  own;  but,  having  done 
so,  they  cannot  claim  to  be  still  the  same  body.  The  charter  was 
granted  to  trustees  to  be  elected  by  the  General  Assembly  as  it  was 
then,  composed  of  members  from  all  the  presbyteries.  A  part  of 
the  presbyteries  cannot  break  down  the  existing  government  of  the 
church,  establish  a  new  one,  including  part  only  of  the  whole,  and 
still  claim  to  enjoy  the  privileges,  which,  by  the  charter,  were 
granted  to  the  whole. 

We  next  come  to  consider  the  conduct  of  the  clerks  and  mode- 
rator of  1837,  at  the  opening  of  the  Assembly  of  1838.  The  clerks, 
it  should  be  recollected,  hold  their  offices  during  pleasure.  Each 
Assembly  elects  its  own  moderator,  and  it  is  provided  that  the  mo- 
derator of  one  Assembly  shall,  (if  present,)  open  the  next,  and  pre- 
side until  a  new  moderator  be  chosen. 

First,  of  the  clerks.  In  order  to  avoid  the  waste  of  time  and 
confusion  which  attended  the  verification  of  all  the  commissions  of 
members  in  presence  of  the  whole  body,  a  rule  has  been  adopted 
in  modern  times,  by  which  the  clerks  are  constituted  a  committee  of 
commissions,  whose  practice  it  is  to  examine  all  the  commissions 
which  may  be  presented  to  them,  before  the  meeting  of  the  Assem- 
bly; to  report  as  received  those  commissions  of  whose  authenticity 
and  regularity  they  are  satisfied;  and  to  report,  for  the  judgment 
of  the  Assembly  itself,  those  which  appear  to  be  irregular,  uncon- 
stitutional, or  not  authentic.  The  latter  class  are  referred  to  a 
committee  of  elections,  whose  appointment  is  the  first  business  in 
order. 

We  allege,  that  the  clerks  were  guilty  of  misconduct,  in  refusing 
to  receive  the  commissions  of  the  excinded  presbyteries.     It  was 


676 

their  duty,  we  contend,  to  receive  and  report  them  as  regular  to 
the  Assembly.  They  refused  even  to  examine  them,  grounding 
their  refusal  on  the  excinding  resolutions  of  the  Assembly  of  1837. 
It  is  in  vain  that  our  opponents  attempt  to  deny  in  argument,  that 
the  clerks,  in  their  refusal,  were  carrying  out  the  resolutions  of 
1837.  The  reply  which  they  made  to  the  application  to  receive 
the  commissions,  \\'as  too  explicit  to  leave  any  doubt  on  this  mat- 
ter; and  those  gentlemen  themselves  have  never  alleged  any  other 
reason  for  their  conduct,  and  would  doubtless  resent  the  imputation 
ol"  having  been  governed  by  any  other  motive,  as  strongly  as  they 
resented,  in  1837,  the  anticipation  that  they  might  possibly  act 
otherwise.  H,  therefore,  we  are  correct  in  saying  that  the  resolu- 
tions of  '37  were  null  and  void,  and  that  the  rejection  of  the  votes 
•of  the  persons  excluded  by  them  would  vitiate  an  election,  (Cowp. 
489,)  it  follows,  that  the  clerks,  acting  as  a  committee  of  elections, 
violated  their  duty  in  rejecting  our  commissions.  But,  at  all  events, 
taking  their  own  ground,  it  was  their  duty  to  report  to  the  Assem- 
bly these  comtnissions,  as  having  been  rejected,  so  as  to  leave  the 
question  of  their  reception  to  the  Assembly  itself.  One  of  the  clerks 
has  very  frankly  stated  that  he  thought  then,  and  still  thinks,  they 
ought  to  have  done  so,  but  was  overruled  by  his  elder  and  more 
experienced  colleague.  They  thus  made  themselves  parties  to  the 
combination  which  had  been  formed  to  prevent  the  question  of  the 
validity  of  the  excinding  resolutions  from  being  presented,  in  its  le- 
gitimate order,  to  the  Assembly  of  1838. 

The  moderator  of  the  Assembly  of  1837,  was  another  party  to 
that  combination.  In  the  x\ssembly  of  1838,  his  main  effort  seems 
to  have  been,  to  use  his  opportunities  as  moderator,  to  obstruct  the 
lawful  organization  of  the  body,  and  to  force  it  to  organize  in  con- 
formity with  the  illegal  acts  of  '37.  I  pass  over  his  rejection  of 
Mr.  Patton's  motion  and  appeal,  for  the  reason  he  gave  was  per- 
haps a  sufficient  one,  that  the  house  was  not  yet  formed.  But,  after 
the  clerks  had  reported  the  roll,  and  the  moderator  had  declared 
the  house  to  be  formed,  he  persisted  in  the  same  course.  When  he 
had  called  for  the  presentation  of  commissions,  (I  shall  not  stop  to 
discuss  the  conflicting  evidence  as  to  the  precise  phrase  which  he 
used,)  and  Mr.  Squiers  presented  his  own,  the  moderator  refused  to 
hear  him,  only  after  ascertaining  that  he  came  from  one  of  the  ex- 
cluded presbyteries,  thus  showing,  that  the  grounds  of  his  refusal 
were  the  excinding  resolutions.  It  has  been  said,  here,  that  this  re- 
fusal was  right,  because  Mr.  Squiers  had  not  been  admitted  as  a 
member,  and  therefore  could  not  make  a  motion.  The  excuse  may 
pass,  and  yet  it  is  to  be  observed,  that,  by  the  universal  usage  of 
this  Assembly,  and  the  practice  of  this  moderator  himself,  (as 
evinced  in  the  case  of  Joshua  Moore,)  the  persons  claiming  seats 
always  presented  their  own  commissions,  and  were  received  to  do 
so,  without  a  motion  by  any  sitting  member. 

Dr.  Mason  then  made  his  motion,  accompanied  by  the  presenta- 
tion of  the  commissions:  this  motion,  which  was  duly  presented, 
was  also  rejected  by  the  moderator.  Dr.  Mason  appealed  from 
his  decision,  and  the  moderator  refused  to  put  the  appeal. 


577 

The  motion  of  Dr.  Mason  is  said  to  have  been  out  of  order  for 
several  reasons. 

1.  Because  the  moderator  had  called  for  commissions  which  had 
not  been  presented  to  the  clerks,  and  these  had  been  presented  to 
them  and  rejected.  The  weight  of  the  evidence  is,  that  tlie  mode- 
rator did  not  so  limit  his  call  for  commissions,  but  I  think  it  very 
immaterial  whether  it  were  so  or  not.  The  clerks  having  withheld 
from  the  house  the  fact  that  these  commissions  had  been  presented 
to  them,  the  moderator  could  have  no  otficial  knowledge  of  that 
fact.  It  is  the  undoubted  right  of  the  house  to  have  all  its  members, 
and  to  determine  on  their  qualifications.  By  the  usages  of  the  As- 
sembly, the  persons  claiming  seats  were  divided  into  three  classes, 
— those  who  were  reported  by  the  clerks  as  having  constitutional 
and  regular  commissions,  those  who  were  reported  as  not  having 
such  conj missions,  and  those  who  were  not  reported  by  the  clerks 
at  all.  It  is  true,  it  was  the  duty  of  the  clerks  to  report  on  all  the 
commissions  presented  to  them,  but  here  they  had  refused  to  per- 
form that  duty.  There  were  but  two  courses  to  be  pursued.  One 
was,  to  compel  the  clerks  to  complete  their  report  by  insjrting  the 
omitted  names;  and  this  course  the  moderator  decided  to  be  out 
of  order  when  he  refused  to  receive  Dr.  Patton's  motion.  The 
other  course  was  to  consider  those  commissions  as  belonging  to  the 
class  not  reported  on,  and  allow  them  to  be  presented  with  the 
others  of  that  class  to  the  house.  The  moderator,  in  effect,  could 
have  no  right  by  limiting  his  call  to  postpone  the  claim  of  one  mem- 
ber to  that  of  another.  When  the  house  was  formed,  all  the  members, 
whose  claims  were  not  already  before  it,  had  an  equal  right  to  pre- 
sent themselves.  The  wrongful  act  of  the  clerks  could  not  affect 
this  riojht,  nor  could  the  wroncpful  act  of  the  moderator.  He  could, 
as  presiding  officer,  make  no  arbitrary  distinctions :  he  could  not 
say  that  he  would  receive  commissions  from  those  claimants  only 
who  wore  whiskers,  or  motions  from  those  members  who  wore 
wigs. 

It  is  said  that  the  moderator  did  not  pronounce  Dr.  Mason's  mo- 
tion to  be  out  of  order  absolutely,  but  only  out  of  order  "at  this 
time."  I  again  say  that  the  weight  of  evidence  appears  to  me  to 
be  against  his  use  of  the  phrase  "at  this  time."  The  question  is  of 
no  importance  that  I  can  perceive,  except  that  the  use  of  the  phrase 
"at  this  time,"  would  be  an  admission  that  the  motion  was  orderly 
in  itself  if  made  at  a  proper  time. 

But  this  motion  was  made  at  a  proper  time.  There  was  no  inter- 
ference with  Joshua  Moore's  presentation  of  his  commission,  for  it 
was  found  that  he  did  not  come  forward  with  it  till  aftei  wards.  Nor 
was  there  any  violation  of  the  rule  that  the  first  business  shall  be  the 
appointment  of  a  Committee  of  Elections.  It  never  was  the  usage 
of  the  Assembly  to  appoint  that  committee  until  after  all  the  persons 
present  claiming  seats  had  presented  their  commissions.  The  mo- 
derator himself  had  called  for  commissions  to  be  presented.  The 
rule  for  the  appointment  of  a  Committee  of  Elections  was  itself  not 
binding  on  the  Assembly  of  1838  as  a  rule,  for  they  had  not  adopt- 
ed or  acted  on  it.     And  if  it  had  been  binding  as  a  rule,  it  was  one 

49 


678 

which  concerned  the  order  of  business  merely,  and  naust  o;ive  way 
to  a  question  of  privilege,  such  as  the  reception  of  a  member. 

This  is  perfectly  clear,  whether  as  a  question  of  corporation  law 
or  of  parliamentary  law. 

In  Austin  vs.  Osborn,  (Com.  24.3,)  the  corporation  of  Hythe  being 
assembled,  admitted  a  freeman,  then  proceeded  to  continue  and 
swear  in  certain  otiicers  of  the  corporation,  and  that  being  done, 
were  proceeding  to  the  election  of  a  mayor.  The  mayor  had  laid 
down  his  mace,  and  the  freemen  had  been  summoned  in  the  usual 
manner,  by  the  blowing  of  a  horn,  to  the  election  of  a  mayor;  when 
certain  persons  presented  themselves  and  claimed  to  be  admitted  as 
freemen. 

They  were  refused  admission  on  grounds  similar  to  those  taken 
here.  They  were  not  in  order  "  at  this  time."  Other  business  was 
actually  in  progress,  viz.  the  election  of  a  mayor.  The  rejected 
claiina'nts  then  tendered  their  votes  at  the  election  of  mayor,  and 
were  again  refused,  because  they  had  not  been  admitted  as  freemen. 
The  Court  of  King's  Bench  held  that  as  these  persons  were  in  fact 
entitled  to  be  admitted,  the  refusal  of  the  mayor  to  admit  them,  (not- 
withstanding the  time  at  which  they  offered  themselves,)  was  a  tor- 
tious refusal,  and  that  being  so,  they  should  not  be  injured  by  it,  and 
that  their  votes  at  the  subsequent  election  ought  to  have  been  re- 
ceived. 

The  parliamentary  law  is  equally  well  settled.  "  Although  a 
question  is  moved,  seconded,  and  proposed  from  the  chair,  if  any 
matter  of  privilege  arises,  either  out  of  the  question  itself,  upon 
any  quarrel  between  members,  or  any  other  cause,  this  will  super- 
sede the  consideration  of  the  original  question,  and  must  be  first 
disposed  of."  (2  Hatsell  113-14.)  And  again, — "  When  a  mem- 
ber appears  to  take  the  oaths,  wiihin  the  limited  time,  all  other  busi- 
ness is  immediately  to  cease,  and  not  to  be  resumed  till  he  has  been 
sworn  and  has  subscribed  the  roll."     (2  Hatsell  88.) 

These  authorities  are  irrefragable.  If  the  law  were  otherwise,  a 
member  who  happened  not  to  be  included  in  the  first  roll  of  the 
Assembly  might  be  kept  out  of  his  seat  altogether,  if  the  moderator 
chose  to* keep  him  out,  by  a  judicious  succession  of  other  business. 
The  reception  of  a  member  is  not  provided  for  in  the  order  of 
business  of  any  deliberative  body  that  I  know  of.  The  reason  is, 
that  it  is  always  in  order  and  should  not  be  limited  to  a  particular 
stage  in  the  business  of  the  day  ;  but  by  these  new  principles  of 
parliamentary  law,  which  the  defendants  set  up,  I  am  not  sure 
that  it  would  ever  be  in  order. 

But  suppose  Dr.  Mason's  motion  to  have  been  out  of  order  "at 
the  time,"  how  would  that  affect  the  case?  He  still  had  the  right 
of  taking  the  decision  of  the  house  on  the  question,  whether  he 
was  in  order.  The  moderator  refused  to  put  his  appeal.  How 
is  this  to  be  justified  ?  By  denying  the  right  of  appeal  from  a  deci- 
sion of  the  chair!  Then  the  moderator  of  one  Assembly  has  the 
absolute  control  over  the  next.  I  agree  that  such  a  moderator  l)as 
all  the  powers  of  a  presiding  officer.  I  consider  him,  in  regard  to 
the  extent  of  his  powers,  precisely  as  if  he  had  been  elected  by  the 


579 

Assembly  of  1838  itself.  But  I  deny  that  he  has  a  power  indepen- 
dent of  the  conirol  of  the  body  over  which  he  presides.  He  is  not 
an  officer  forming  an  integral  part  of  a  corporation:  he  is  like  the 
speaker  of  a  legislntive  assembly,  or  the  chairman  of  any  delibera- 
tive body,  and  as  such,  is  always,  as  Mr.  Waller  said,  "m  potestate 
senatns."  (4  Cobb.  905.)  His  decisions  on  questions  of  order  may 
be  reversed  by  the  house  on  appeal.  He  is  the  mere  mouth-piece 
of  the  house:  in  fact,  his  decisions  are  of  no  force,  as  his  own  opi- 
nions; they  derive  their  vigour  only  from  the  presumption  that  he 
has  declared  the  sense  of  the  house  on  the  particular  question  :  tliey 
stand  as  the  judgment  of  the  house,  unless  a  member  questions  that 
they  are  so,  and  demands  that  the  judgment  of  the  house,  be  ex- 
pressly pronounced.  There  is  a  great  misunderstanding  of  this 
matter.  The  decisions  of  a  moderator  or  speaker  have  been  spoken 
of  as  if  he  constituted  a  tribunal,  from  whose  decree  an  appeal  is  to 
be  taken.  It  is  not  so.  There  is  no  tribunal  but  the  house  itself. 
The  foreman  of  a  jury  pronounces  the  verdict,  and  it  is  presumed 
to  be  the  verdict  of  the  jury;  but  if  either  party  questions  that  pre- 
sumption, the  whole  jury  are  called  on  to  express  their  opinions. 
In  the  case  of  a  jury,  it  is  called  polling  the  jury,  in  the  case  of  a 
speaker,  it  is  called  appealing  to  the  house,  but  in  substance  the  two 
cases  are  alike. 

The  appeal  must  be  taken  immediately  of  course,  otherwise  the 
verdict  or  decision  stands  as  the  judgment  of  the  jury  or  the  house. 
Here  Dr.  Mason  did  appeal  at  once,  and  his  appeal  was  duly  second- 
ed. Why  did  the  moderator  refuse  to  put  it?  This  question  is  not 
to  !)c  answered  by  •:~:\\\r\j^  that  the  decision  appealed  from  was  in 
fact  correct.     That  is  of  no  importance  whatever. 

it  is  said  that  an  appeal  may  be  made  too  late,  after  the  house 
has  proceeded  with  other  business.  This  is  very  true,  but  it  is  not 
pretended  that  Dr.  Mason's  appeal  was  made  too  late,  and  therefore 
1  cannot  perceive  what  bearing  the  suggestion  has  on  the  case. 

But  our  adversaries  are  driven  to  take  the  broad  ground,  that  no 
apjieal  can  be  taken  from  the  decisions  of  the  moderator,  that  what 
he  chooses  to  decide  must  stand  as  absolutely  conclusive.  I  admire 
their  intrepidity. 

The  minute  criticism  which,  in  support  of  this  position,  has  been 
made  on  the  provisions  of  the  present  constitution,  as  compared 
with  the  former  constitution  of  the  church,  I  shall  not  pause  to  ex- 
amine. It  may  be  that  the  right  of  appeal  is  not  expressly  secured 
in  the  constitution  of  1821.  The  right  exists  nevertheless.  It  re- 
sults from  the  very  nature  of  the  Assembly,  as  a  deliberative  body. 
Like  the  right  of  debating,  it  requires  no  ex))ress  provision. 

But  it  is  expressly  provided  for  in  the  rules  adopted  by  the  Gene- 
ral Assembly  for  their  own  government,  and  recommended  by  them 
to  inferior  judicatories.  The  minutes  of  the  Assembly  show  its 
existence  as  a  matter  of  usage.  If  our  adversaries  refilv  that  the 
rules  and  usages  of  former  Assemblies  are  not  binding  upon  their 
successors,  I  have  no  objections  to  admit  that  such  is  the  case. 
But  the  question  here  is,  whether  a  power  has  been  given  to  the 
moderator  entirely  beyond  the  control  of  the  Assembly  itself.     If  it 


580 

has  been  given,  then  a  rule  or  usage  to  the  contrary  would  be  un- 
lawful. Now  our  opponents  do  not  pretend  that  the  rules  or  usages 
spoken  of,  were  unlawful.  They  admit,  therefore,  that  the  Assenn- 
bly  may  control  the  decisions  of  the  moderator  if  they  choose,  and 
by  that  admission  they  give  up  their  argument,  for  in  that  case  the 
moderator's  power  is  not  independent.  In  fact  the  idea  that  the 
presiding  officer  of  a  dehberative  assembly  is  the  absolute  master  of 
the  body,  seems  so  wholl}'  preposterous,  that  I  am  at  a  loss  to  know 
how  to  consider  it  gravely.  The  constitution  of  the  United  iStates 
provides  that  the  vice-president  shall  be  president  of  the  senate,  but 
I  do  not  recollect  that  it  stipulates  that  an  appeal  shall  lie  from  his 
decision  on  questions  of  order.  But  as  such  appeals  have  been 
always  practised,  and  no  man  has  yet  been  found  to  question  their 
legality,  I  think  I  will  leave  this  part  of  the  case  on  the  precedent 
afforded  by  the  rules  and  usages  of  that  body. 

The  moderator,  then,  was  guilty  of  misconduct  in  refusing  to  put 
Dr.  Mason's  appeal  to  the  house,  if  in  no  other  respect.  In  his 
whole  career,  indeed,  he  was  violating  the  duties  of  his  office  and 
obstructing  the  course  of  business  which  he  was  appointed  to 
carry  on. 

We  next  allege,  that  the  moderator  and  clerks  were  respectively, 
by  votes  of  the  house,  removed  from  their  offices,  and  others  ap- 
pointed to  fill  them,  and  tliat  the  Assembly  adjourned  its  session 
from  Ranstead's  court  to  Washington  square. 

It  is  not  necessary  to  go  over  all  the  motions  and  votes  on  this 
occasion,  for  all  depend  on  the  same  principles  for  their  validity. 
I  will  follow  the  example  set  on  the  other  side,  and  confine  my  re- 
marks to  the  motion  made  by  Mr.  Cleavcland  for  tho  appointment 
of  Dr.  Beman  as  moderator.  If  that  motion  were  lawfully  made, 
put,  and  carried,  the  case  is  with  us. 

That  Dr.  Beman  was  in  fact  elected  moderator  by  the  votes  of  a 
majoritv  of  the  members  present  and  voting,  was  a  much  contested 
part  of  the  case  before  the  jury,  and  has  been  found  in  our  favour 
hy  the  mrdicL 

Many  witnesses  were  examined  on  both  sides  in  regard  to  it,  and 
as  the  learned  judge,  who  tried  the  cause,  left  it  fairly  to  the  jury 
on  the  evidence,  and  has  expressed  no  dissatisfaction  with  their  find- 
ing, we  may  be  spared  the  pains  of  a  very  critical  examination  of 
the  testimony.  I  shall  briefly  notice  the  evidence  in  connexion  with 
the  questions  of  law  connected  with  this  part  of  the  case. 

Mr.  Cleaveland's  motion  I  am  to  contend  was  lawfully  niade, 
put,  and  carried. 

1.  It  was  lawfu  ly  made.  It  was  made  by  Mr.  Cleaveland  and 
seconded  by  another  gentleman,  both  the  mover  and  seconder  being 
actually  silting  members  of  the  Assembly,  enrolled,  and  received 
as  such,  and  whose  right,  neither  the  moderator,  clerks,  nor  any 
one  else,  then,  or  at  any  time,  denied  or  questioned.  The  motion 
was  in  proper  form,  being  in  effect  to  remove  the  moderator  and 
put  another  in  his  place.  It  was  not,  as  has  been  contended,  in- 
sidious or  ambiguous.  It  would  have  been  sufficiently  explicit  un- 
der any  circumstances,  for  as  the  Assembly  could  not  have  two 


581 

moderators  at  the  same  time,  if  tiie  motion,  "that  Dr.  Beman  be 
moderator,"  were  carried,  the  necessary  effect  would  be  to  remove 
the  former  incumbent.  Rut  the  form  of  the  motion  was  pecuharly 
appropriate,  as  Dr.  EIHott's  tenure  of  the  chair  was,  by  the  consti- 
tution, to  continue  only  "  until  another  moderator  should  be  chosen." 
j\o  instance  can  be  produced  from  the  minutes  of  the  Assembly, 
in  which  the  motion  to  choose  a  moderator  was  accompanied  by  a 
clause  expressly  removing  the  old  one. 

The  motion  was  in  itself  a  lawful  motion.  As  the  moderator 
was  to  continue  only  until  another  should  be  chosen,  it  seems  odd 
that  it  should  be  urged  by  the  defendants,  that  a  motion  could  not 
be  inade  to  choose  another. 

The  clause  in  the  constitution  which  provided  the  tenure  of  his 
office,  put  him,  in  effect,  in  the  same  position  as  a  moderator  chosen 
by  the  Assembly  of  1838,  that  is,  he  held  the  chair  during  the  plea- 
sure of  the  house.  The  speaker  is  the  mere  servant  of  the  house, 
and  though  it  is  not  usual  to  remove  him  capriciously  or  without 
reasonable  cause,  yet  the  house  is  the  sole  judge  of  the  sufficiency 
of  the  cause  alleged,  and  may  remove  without  cause  if  they  see 
fit  to  do  so. 

But  here  there  was  ample  cause,  if  the  misconduct  of  a  presiding 
officer  be  such.  The  moderator,  instead  of  promoting  the  transac- 
tion of  business  in  a  constitutional  and  orderly  way,  was  disturbing 
it  by  all  means,  however  unlawful  and  irregular,  and  at  last  his  re- 
fusal to  put  Dr.  Mason's  appeal,  showed  that  he  was  resolved  to  dis- 
regard all  rules,  precedents,  and  even  the  decencies  of  parliamen- 
tary proceedings,  and  surrender  himself  wholly  to  the  guidance  of 
his  own  passions  and  prejudices,  and  those  of  the  other  members  of 
the  unlawful  combination  to  which  he  had  attached  himself.  Am  I 
asked  to  prove,  that  in  such  a  state  of  things,  the  house  could  re- 
move the  moderator?  It  is  to  prove  that  the  house  could  transact 
any  business.  The  legitimate  result  of  the  principles  propounded 
on  the  other  side,  is,  that  if  a  moderator  refused  to  permit  any  ques- 
tion to  be  put  or  any  member  to  speak,  or  if  he  persisted  in  deciding 
questions  against  a  clear  majority,  and  I'efused  to  allow  the  ayes  and 
nays  to  be  called,  that  the  house,  even  if  unanimous,  could  not  re- 
move him,  but  must  remain  in  a  state  of  paralysis,  until  his  heart 
should  be  changed.  But  this  is  not,  nor  ever  was  the  law.  They 
have  appealed  on  the  other  side  to  parhamentary  law  and  pre- 
cedents. There  never  was  a  time  when  the  house  of  commons 
had  not  a  right  to  remove  their  speaker  in  case  of  inability  or  mis- 
conduct. 

In  1391),  Sir  John  Cheney,  speaker,  declaring  that  by  a  sudden 
disease  he  w^as  unable  to  serve,  the  commons  chose  Sir  John  Dore- 
ward  in  his  room.     (2  Hats.  201.). 

In  1413,  William  Staunton,  speaker,,  being  taken  suddenly  ill, 
the  cominons  again  chose  Sir  John  Doreward.     (Id.  202.) 

In  1436,  Sir  John  Tirrel,  speaker,  being  disabled  from  attending 
by  sickness,  William  Boerly,  Esq.,  was  elected  in  his  room.    (Id.  202.) 

In  1454,  Thomas  Thorpe,  Esq.,  speaker,  being  detained  a  prisoner 

49* 


582 

in  execution,  by  the  overbearing  power  of  the  Duke  of  York,  the 
commons  elected  a  new  speaker  in  his  room.     (Id.  202.) 

in  1672,  Mr.  Speaker  being  ill,  and  desiring  leave  to  retire,  an- 
other speaker  is  chosen  in  his  room.     (Id.  203.) 

In  1673,  Mr.  Seymour  being  speaker,  Sir  Thomas  Littleton  al- 
leged reasons  why  he  ought  not  to  be  speaker,  (the  reasons  not 
founded  on  alleged  misconduct  in  the  chair)  and  moved  for  a 
speaker  pro  tempore.  A  long  debate  ensued,  in  a  house  in  which 
the  speaker's  friends  were  in  the  majority,  but  no  man,  in  the 
course  of  the  debate,  doubted  or  questioned  the  right  of  the  mem- 
ber to  make  the  motion,  or  of  the  house  to  pass  upon  it,  and  they 
finally  got  rid  of  it  by  the  previous  question.    (4  Cobb-  589-591.) 

Here  is  ample  nuthority  for  the  position  which  we  maintain, 
if,  indeed,  any  authority  were  necessary  to  establish  a  doctrine  so 
reasonable  in  itself,  and  so  essential  to  the  existence  of  a  delibera- 
tive body. 

It  is  a  mistake  to  suppose  that  Dr.  Mason  alone  could  make  the 
motion,  as  he  was  the  member  whose  appeal  the  moderator  had  re- 
fused. Every  member  of  a  parliamentary  body  knows  that  the 
whole  body  is  injured  by  the  misconduct  of  a  member  or  officer, 
and  that  the  light  of  moving  on  the  subject  is  not  confined  to  the 
party  immediately  connected  with  the  transaction  complained  of. 
Indeed,  from  motives  of  delicacy,  it  is  usual  for  some  other  member 
to  propose  a  vote  of  censure  or  removal,  in  order  that  no  colour  of 
personal  motive  may  be  given  to  the  proceedings  of  the  house.  In 
contests  with  the  chair  especially,  the  member  directly  involved 
may  be  ignorant  of  the  rules  of  order,  or  too  feeble  in  temper,  or 
too  inexperienced,  to  protect  himself,  and  he  is  entitled  to  the  pro- 
tection of  other  members  who  may  be  more  highly  gifted,  and  who, 
in  ])rotecting  the  rights  of  tlie  party  assailed,  are  at  the  same  time 
guarding  their  own,  and  vindicating  those  of  the  whole  body. 

There  seems  to  be  not  the  slightest  ground  for  the  proposition  ad- 
vanced on  the  other  side,  that  if  the  moderator  of  the  last  year  were 
removed,  the  next  oldest  moderator  present  should  take  his  place. 
The  constitution  provides  for  but  one  moderator  of  a  former  year, 
(not  as  a  germmatingroot,  not  as  a  primary  formation  and  substratum 
ior  secondary  deposit  or  alluvial  increment — not  as  trap,  stilbite,  ser- 
pentine or  puddingstone,  nor  as  any  other  thing  connected  with  any 
of  the  natural  sciences,)  but  as  a  person  whom  it  is  convenient  to 
place  temporarily  in  the  chair,  till  the  Assembly  shall  choose  a  pre- 
siding officer  for  itself.  It  does  not  provide  for  a  train  of  old  mo- 
derators to  pass  in  endless  array  across  the  chair,  like  the  proces- 
sion of  the  Pre- Adamites  in  "The  Caliph  Vathek." 

2.  Mr.  Cleavelaiid's  motion  was  lawfully  put.  It  was  put  to  the 
house,  and  not  to  a  part  of  the  house  only.  This  fact  has  been  found 
by  the  jury.  On  the  trial  many  speculations  were  hazarded  on  the 
word  "We,"  which  it  appeared  Mr.  Cleaveland  had  used  in  his 
preliminary  remarks.  The  word  "We"  is  used  in  various  senses. 
In  its  royal  and  editorial  sense  it  designates  the  respective  individual 
monarchs  to  whom  the  government  of  the  country  or  the  press  is 
confided.     In  its  parliamentary  sense,  it  means  the  whole  assembly 


583 

in  which  it  is  used.  And  as  Mr.  Cleaveland  was  addressing  a  de- 
liberative body  of  which  he  was  a  member,  we  thought  and  think 
it  very  obvious  that  he  used  the  word  in  its  parHamenlary  meaning. 

The  question  was  lawfully  put  by  a  member.  The  moderator 
would  not  put  it:  he  endeavoured  to  prevent  its  being  put  at  all,  for 
the  moment  the  motion  was  made,  he  and  his  t'riends  began  to  be 
noisy,  and  continued  so  during  great  part  of  the  subsequent  pro- 
ceedings. Besides,  as  the  question  concerned  the  moderator  per- 
sonally, it  should  have  been,  at  all  events,  put  by  some  other  person 
according  to  our  usages;  and  on  high  parliamentary  authority  (Sir 
Thomas  Littleton,  4  Cobb.,  889.)  it  may  be  said  that  the  moderator 
should  even  have  retired  from  the  house. 

The  clerks  were  disqualified  from  putting  the  question  as  much 
as  the  moderator  himself,  for  the  course  they  had  pursued  showed 
that  they  were  participes  with  him.  Besides,  while  a  presiding  of- 
ficer is  actually  in  the  chair,  the  clerk  can  receive  no  direction  Irom 
the  house,  but  through  him.     {2  Hatsell,  257.) 

But  apart  from  these  reasons,  peculiar  to  this  case,  I  contend  that 
it  is  a  mistake  to  suppose  that  the  clerk,  as  such,  has  any  preroga- 
tive in  this  matter.  Even  in  England  he  has  none  such,  although 
there  might  be  the  shadow  of  a  reason  given  for  his  possessing  it 
there.  The  speaker  of  the  house  of  commons  must  be  approved  by 
the  king,  and  the  clerk  is  appointed  by  the  king.  (2  Hatsell,  237; 
4  Cobb.  1002.) 

The  house  forms  part  of  one  of  the  king's  courts,  and  it  might 
with  some  plausibility  be  urged  there,  as  connected  with  the  royal 
prerogative,  that  if  the  speaker  approved  by  the  king  could  not  act, 
the  next  recourse  should  be  to  the  clerk  appointed  by  him. 

It  is  indeed  usual  for  the  clerk  to  put  the  question  of  adjournment 
when  the  speaker  is  absent,  (2  Hatsell,  211-12,)  and  the  question  on 
the  election  of  speaker,  when  it  is  put  to  a  question,  (2  Hats.  207;) 
but  in  these  cases  it  is  entered  on  the  journals  that  the  clerk  puts 
the  question  "by  order  of  the  house;"  and  if  that  order  were  to  be 
put  to  the  question,  none  but  a  member  could  possibly  put  it.  The 
entry  of  "ordered"  merely  on  the  journal,  shows  that  the  thing 
passed  by  common  consent.  If  there  be  a  debate,  it  is  entered 
"ordered^on  the  question."  (Sir  Thos.  Meres.  4.  Cobb,  929.)  In 
1678-9,  a  debate  occurring  on  the  election  of  speaker,  Mr.  Sacheve- 
rell  moves  "  that  the  clerk  may  put  the  question  for  adjourning  the 
house  till  to-morrow."     (4  Cobb.  1094.) 

From  these  authorities  it  appears  that  when  the  clerk  puts  a 
question,  it  is  by  order  of  the  house,  by  common  consent,  and  not 
by  virtue  of  any  privilege  of  his  office.  This  consent  is  presumed 
to  be  given  if  no  objection  be  made;  and  any  member  may  there- 
fore put  the  question  by  like  common  consent,  as  was  done  here  by 
Mr.  Cleaveland,  nobody  objecting  to  his  s'o  doing. 

The  notion  that  the  clerk  has  a  privilege  superior  to  that  of  a 
member,  is,  I  believe,  new,  and  I  am  sure  unfounded.  But  I  will 
show  a  precedent  which  is  conclusive.  In  the  year  1628,  Sir  John 
Elliott  moved  a  remonstrance  on  the  subject  of  tonnage  and  pound- 
age, "which,  being  refused  to  be  read  by  the  speaker  (Finch)  and 


584 

clerk,  was  restored  to  him  again,  and  by  him  read,  in  these  words 
tbllowing,"  &c.  This  was  again  ofiercd  to  be  put  to  the  question, 
but  the  speaker  said  "lie  was  conmianded  otherwise  by  the  king." 
To  this  Mr.  tSelden  answered,  "  JMr.  Speaker,  if  you  will  not  put  the 
question,  which  we  command  }ou,  we  n)ust  sit  still;  and  so  we 
shall  never  be  able  to  do  any  thing,"  &c.  The  speaker  replied, 
*•  he  had  an  express  command  from  the  king,  so  soon  as  he  had  de- 
livered his  message  to  rise."  And  thereupon  he  rose  and  left  the 
chair;  but  was  drawn  to  it  again  by  Mr,  Hollis,  Mr.  Valentine,  and 
other  members.  Mr.  Hollis  swore,  "  God's  wounds,  he  should  sit 
still  till  it  pleased  them  to  rise."  Mr.  Selden  again  urged  the 
speaker  to  proceed,  which  he  still  refused,  "with  extremity  of 
weeping  and  supplicatory  oration."  In  the  mean  time,  "since  nei- 
ther advice  nor  threats  could  prevail,  Mr.  Hollis  was  required  to 
read  certain  articles  as  the  protestation  of  the  house,  the  effect  of 
which  articles  is  as  followeth,  viz."  &c.  "These  being  read  and  al- 
lowed of,  the  house  rose  up,  after  they  had  sitten  down  about  two 
hours."  (2  Cobb,  488 — 491.)  So  that  on  the  speaker's  refusal,  the 
question  was  put  by  Mr.  Hollis,  a  member,  and  not  by  the  clerks. 
Mr.  Hollis  was  afterwards  questioned  before  the  privy  council,  not 
for  usurping  the  office  of  speaker  by  putting  the  question  on  the 
articles,  but  "for  placing  himself  above  divers  of  the  privy  council- 
lors, by  the  chaii."  (2  Cobb,  504.)  On  the  meeting  of  the  next 
parliament  in  1(540,  the  speaker  was  severely  censured  for  his  con- 
duct by  a  vote  of  the  house.  (2  Cobb,  552.)  And  in  his  impeach- 
ment (art.  2)  in  1642,  his  refusal  to  put  the  question  was  set  forth 
as  one  of  the  high  crimes  and  misdemeanors,  a  conviction  of  which 
he  escaped  only  by  flying  the  realm.     (2  Cobb.  694.) 

If  it  be  said  that  these  precedents  occurred  in  turbulent  times, 
and  are  therefore  unsafe  guides,  I  reply  that  the  parliament  of 
1628  is  universally  acknowledged  to  have  been  one  of  the  best, 
wisest  and  most  judicious  parliaments  that  have  sat  in  England; 
and  I  think  no  precedent  can  be  called  unsafe,  in  establishing  which 
such  a  man  as  Mr.  Sulden,  to  say  nothing  of  others,  actively  parti- 
cipated. Even  the  parliament  of  1642,  whatever  else  may  be  said 
of  it,  was  a  good  Piesbyterian  parliament,  till  the  Independents  ad- 
ministered Colonel  Pride's  purge  to  it;  and  it  would  scarcely  be- 
come those  who  hold  to  the  letter  of  the  Confession  of  Faith  adopt- 
ed by  the  Assembly  of  Divines  at  Westminster,  to  treat  with  entire 
disregard  the  contemporaneous  doctrines  propounded  by  their  fel- 
low-labourers in  St.  Stephen's  Chapel. 

So  much  for  the  parliamentary  law  on  this  question.  The  prin- 
ciples of  the  comm(jn  law  are  equally  clear.  Even  where  the 
charter  required  the  presence  of  the  mayor  at  a  corporate  meeting, 
(the  mayor  being  an  integral  part  of  the  corporation,  and  not  tlie 
mere  officer  of  the  assembly,)  if  the  mayor  improperly  declares  the 
assembly  dissolved,  and  goes  away,  the  members  of  the  body  who 
remain  may  finish,  in  his  absence,  the  business  which  has  been 
commenced,  but  not  proceed  to  new  business.  This  goes  far  be- 
yond the  mere  putting  a  question  which  the  presiding  officer  has 
refused   to   put.     Here  the   business   was   commenced   when   Mr. 


585 

Cleaveland  made  his  motion,  and  might  therefore  have  been  gone 
on  vviih,  even  if  the  moderator  had  been  such  an  officer  as  a  mayor, 
and  had  left  the  Assembly.  (Barnnd.  386-6.  6  Vin.  269.)  The 
common  law  carefully  guards  against  the  undue  increase  of  the 
powers  of  presiding  officers,  and  therefore  a  by-law  giving  a  cast- 
ing vote  to  the  senior  bailiff  is  void.  Such  a  privilege  can  be  con- 
ferred only  by  express  terms  in  the  charter.  (Rex  vs.  Ginever,  6  T. 
R.  735.) 

We  know  of  but  one  precedent  in  the  proceedings  of  the  General 
Assembly  itself,  and  that  was  in  1835,  when  Dr.  Beman  first  took 
the  chair,  and  after  holding  it  for  a  day  or  two,  was  removed,  and 
another  person  put  in  his  place.  The  question  on  Dr.  Roman's 
leaving  the  chair  was  put  by  Dr.  Ely,  who  was  a  member,  and  also 
stated  clerk.  So  far,  therefore,  as  regards  the  not  putting  such  a 
question  by  the  incumbent  of  the  chair,  the  precedent  is  clearly  with 
us;  and  it  seems  to  be  with  us  throughout,  as  I  apprehend  Dr.  Ely 
put  the  question  in  his  character  as  a  member,  and  not  as  a  clerk; 
for  the  permanent  clerk  is  the  officer  of  the  house  by  whom  the 
proceedings  are  minuted  and  recorded.  The  duties  of  the  stated 
clerk  are  different,  and  occur  between  the  close  of  one  Assembly 
and  the  opening  of  another;  and  he  does  not  stand  to  the  house  in 
the  same  relation  as  the  clerk  of  the  house  of  cotnmons  and  other 
parliamentary  bodies.  He  is  more  like  a  secretary  of  state.  Jf  Dr. 
Beman  and  his  friends,  on  the  motion  for  putting  another  in  his 
place  being  made,  in  1835,  had  commenced  making  all  sorts  of  un- 
seemly and  disorderly  noises,  rapping  with  hammers,  stamping  with 
feet,  coughing  and  exclaiming,  the  most  material  difference  between 
the  two  cases  would  be  removed. 

If  the  question  was  properly  put  by  a  member,  it  was  lawfully 
put  in  other  respects.  That  it  was  audibly  put,  actually  heard  and 
understood,  and  that  it  was  reversed,  these  are  questions  of  fact, 
which  the  jury  have  found  in  our  favour  upon  irresistible  evidence, 
which  I  shall  not  weary  the  Court  with  recapitulating.  That  the 
moderator  and  his  knot  of  friends,  who  were  engaged  during  the 
proceeding  in  making  unseemly  noises,  should  not  have  a  clear  re- 
collection on  the  subject,  is  by  no  means  extraordinary.  But  we 
proved  by  clouds  of  witnesses  all  that  was  material  to  the  validity 
of  the  proceeding,  and  a  great  part  of  it  was  substantiated  by  the 
witnesses  for  the  defendants  themselves. 

3.  We  maintain  that  the  question  was  lawfully  carried.  R  was 
carried  by  a  majority  of  the  members  present  and  votlvg.  On  the 
other  side,  it  is  contended  that  it  could  not  be  carried,  unless  by  the 
votes  of  an  actual  majority  of  the  members  present.  We  insist  that 
those  members  who  did  not  vote  are  not  to  be  counted,  and  that,  as 
a  quorum  was  present  and  voted,  and  a  majority  of  those  who 
voted,  voted  for  the  motion,  it  was  carried. 

To  support  our  position,  we  again  refer  with  confidence  to  the 
rules  and  usages  of  this  particular  body,  to  the  general  parliament- 
ary law,  and  to  the  common  law. 

Among  the  rules  of  the  General  Assembly,  is  one  which  strongly 
recommends  that  all  the  members  of  a  judicatory  should  vote, 


586 

urging  on  thenfi  as  a  motive  for  so  doing,  that  otherwise,  inaportant 
measures  may  be  decided  by  a  small  proportion  of  the  members 
present.  The  universal  usage,  in  conformity  with  this  suggestion, 
of  all  the  judicatories  of  the  Presbyterian  Church,  was  amply  proved 
on  the  trial  by  uncontradicted  testimony. 

The  parliamentary  law  is  equally  clear;  indeed,  so  clear,  that, 
until  the  trial  of  this  cause,  I  cannot  find  that  any  question  was 
ever  made  of  it.  Who  ever  heard  a  question  taken  by  sound  in  a 
deliberative  body,  and  does  not  know  that  most  frequently  not  one- 
half  of  the  members  actually  vote.  Even  on  a  division,  it  often 
happens  that  a  considerable  portion  of  the  members  do  not  rise  on 
either  side;  nay,  they  do  not  always  all  vote  when  the  ayes  and 
noes  are  called.  Yet  in  all  these  cases  the  question  is  determined 
by  the  majority  of  the  votes  actually  given,  without  any  regard  to 
the  non-voting  members;  it  being  necessary,  however,  in  all  cases 
where  the  ayes  and  noes  are  called,  that  a  quorum  should  actually 
vnte;  and  in  case  of  a  division,  that  at  least  a  m;ijority  of  a  quorum 
should  vote  in  the  affirmative  to  carry  the  question:  though  even 
the  requisition  that  a  quorum  should  vote,  has  not  been  observed  in 
the  judicatories  of  this  church. 

But  the  rule  of  the  common  law  on  this  subject,  (which,  after  all, 
is  the  only  authority  on  a  corporaticm  questinn,)  is  most  incontro- 
vertilily  established.  If  a  quorum  of  members  be  actually  present, 
and  an  election  l)e  lawfully  proposed,  although  the  mnjority  of  the 
members  present  actually  protest  against  holding  the  election  at  all, 
and  refuse  to  vote  under  that  protest,  their  protest  and  refusal  are 
unavailing,  and  the  candidate  having  a  majority  of  the  voting  mi- 
nority, is  duly  elected.  (Rex.  vs.  Foxcrofi  :  Oldknow  vs.  Wain- 
wright,  2  Burr.  1017,  1020.)  The  majority  can  prevent  it  only  by 
voting  for  another  candidate.  So  if  the  majority  vote  for  an  un- 
(jualified  person,  the  candidate  of  the  minority  is  duly  elected. 
(Clandgi  vs.  Evelyn,  5.  B.  and  A.  86.)  The  same  point  was  deci- 
ded in  Rex.  vs.  Parry  (14  East,  .'^(•l,  vid.  550  in  vol)  and  in  Rex.  vs. 
Hawkins  (10  East.  214.)  These  authorities  are  full  and  abundant 
<>n  the  question,  and  go  beyond  the  principle  which  we  are  called 
upon  here  to  maintain. 

The  rule  as  thus  laid  down  is  founded  on  the  strongest  principles 
of  reason.  Business  could  not  be  carried  on  in  a  public  body,  if  a 
portion  of  the  members,  by  refusing  to  perform  their  duties,  could 
stop  all  proceedings;  and  it  would  be  still  worse  if  the  disorderly 
conduct  of  a  part  could  vitiate  the  proceeding  of  the  remainder.  ]n 
either  case  a  premium  would  be  offered  on  misconduct,  by  giving 
an  advantage  to  those  who  were  guilty  of  it.  The  principle  which 
we  contend  for  as  sufficient  for  the  necessities  of  our  case,  is,  that 
if  a  quoruiu  be  present  and  acting,  those  who,  though  present, 
refuse  to  act,  and  commit  disorders  with  the  view  of  disturbing  the 
body,  are  in  law  considered  as  if  they  were  absent. 

I  have  thus  attempted  to  display  the  main  and  essential  features 
of  this  case,  and  shall  not  undertake  to  comment  on  the  numerous 
minor  points  which  have  been  made  by  the  defendants. 

In  some  of  them  the  charge  of  the  court  appears  to  be  misunder- 


587 

stood,  and  in  oil)ers,  the  decision  ot^  the  judge  on  questions  of  e\i- 
dence. 

For  instance,  I  do  not.  understand  the  learned  judge  to  have 
charged,  that  there  was  any  acquiescence  of  the  presbyteries  in  the 
sitting  ot  Congregational  members  in  the  Assembly  under  the  guise 
of  Presbyterians.  Nor  did  we  contend  that  there  was  any  such  ac- 
quiescence, nor  was  there  any  evidence  that  any  such  peisons  ever 
sat.  In  the  year  1801,  and  for  many  years  prior  and  subsequent, 
there  wee  Congregational  members  received  and  sitting  avowedlv 
as  such  in  the  Assembly,  under  and  by  virtue  of  the  previouslv 
existing  plan  of  intercourse  with  the  association  of  Connecticut  and 
other  Congregational  bodies.  But  the  acquiescence  which  the 
judge  charged  upon,  was  an  acquiescence  of  the  presbyteries  in  the 
Plan  of  Union  of  1801,  of  which  ihcy  all  had  full  knowledge,  and  in 
which  they  certainly  did  acquiesce  for  more  than  thirty  years. 

Nor  is  it  accurate  to  say  that  the  judge  left  to  the  jury  a  question 
of  law  on  the  conduct  of  the  moderator.  He  left  to  the  jury  the 
question  whether  Dr.  Elliott's  conduct  was  governed  by  an  intention 
on  his  part  to  carry  out  the  resolutions  of  1837;  and  this  was  a 
question  of  fact.  He  charged  the  jury  that  if  that  were  his  motive, 
then  his  acts  were  unlawful,  and  that  was  a  question  of  law. 

I  need  not  vindicate  the  observations  of  the  judge  on  the  com- 
parative strength  of  affirmative  and  negative  testimony,  for  they  re- 
quire no  vindication.  Indeed  the  defendants  admitted  them  to  be 
correct  in  the  general,  but  supposed  that  there  was  some  peculiari- 
ty in  the  present  case,  which  rendered  them  inapplicable  to  it. 
The  subject  of  inquiry  being  whether  Mr.  Cleaveland's  motion  was 
audibly  made  and  put,  and  the  question  reversed  on  it,  we  produced 
many  witnesses  who  actually  heard  all  this,  and  who  occupied  posi- 
tions in  all  the  most  remote  quarters  of  the  church.  Most  of  the 
defendants'  witnesses  themselves  heard  quite  enough  to  give  them 
a  clear  apprehension  of  the  character  of  the  proceeding  which  was 
going  forward. 

The  defendants,  however,  produced  some  wimesses  who  did  not 
hear  the  motion  or  question.  Under  ordinary  circumstances  it 
would  have  been  difficult  to  account  for  the  fact  that  so  many  gen- 
tlemen of  more  than  common  intelligence  should  have  failed  to  hear 
the  announcement  of  a  question  in  a  body  of  which  they  were  mem- 
bers. The  peculiarity  of  the  case  lay  here,  that  we  were  able  fullv 
to  account  for  and  explain  this  fact,  by  showing  that  they  and  their 
friends  were  filling  their  ears  at  the  time  with  the  music  of  stamp- 
ings, hammer-rappings,  and  noisy  exclamations.  Instead  of  laying 
down,  as  he  did,  the  ordinary  rule  of  comparison  between  affirma- 
tive and  negative  testimony,  the  judge  would  have  been  justified  in 
telling  the  jury  that,  under  such  circumstances,  the  superiority  of 
affirmative  testimony  was  very  greatly  enhanced. 

In  relation  to  the  points  on  which  the  respondents'  counsel  re- 
quested his  honour  to  charge  the  jury,  I  do  not  know  that  I  have 
any  occasion  to  remark,  furtlier  than  I  have  already  done  in  llie 
coiu'se  of  my  observations. 

Tiie  suggestion  that  we  have  recognized  the  acts  of  the  Assembly 


588 

of  '37  subsequent  to  the  excision,  and  are  thereby  barred  from 
questioning  the  legality  of  the  excinding  resolutions,  and  the  re- 
maining objections  to  the  charge  and  the  admission  and  rejection 
of  evidence,  as  well  as  the  exceptions  to  the  form  of  the  verdict,  I 
shall  say  nothing  upon,  leaving  them  with  entire  confidence  to  the 
determination  of  the  Court  without  argument.  The  charge  of  the 
learned  judge  will  survive  all  the  assaults  which  may  be  made  upon 
it,  and  will  be  looked  up  to  in  future  time,  as  a  lucid  and  masterly 
exposition  of  the  important  principles  involved  in  this  case. 

One  misunderstanding  I  beg  to  correct.  It  is  stated  that  the 
judge  refused  to  permit  the  defendants  to  prove  that  the  excinded 
presbyteries  had  not  contributed  to  the  funds  of  the  church.  As 
part  of  our  evidence  of  actual,  recognized  membership,  we  had 
proved  the  acceptance,  through  a  series  of  years,  of  our  contribu- 
tions, by  the  General  Assembly.  The  defendants  ofiered  to  prove, 
not,  as  is  supposed  in  the  exceptions,  that  we  had  not  contributed, 
but  that  our  contributions  were  small  in  amount.  This  ofler  it  was 
that  the  judge  rejected,  and  properly,  for  the  question  was  of  our 
having  been  adinitted  to  contribute  to  the  funds  of  the  church  as 
members,  and  not  of  our  poverty  or  wealth.  The  legal  effect  of 
our  contributions  does  not  depend  at  all  upon  their  amount,  and  we 
have  the  highest  authority  for  believing  that  there  may  be  as  much 
merit  in  every  sense  in  the  gift  of  a  mite  as  of  a  talent.  If  the  de- 
fendants had  offered  to  prove  that  we  had  not  contributed  at  all, 
that  would  have  been  certainly  admissible,  and  we  should  not  have 
objected  to  it. 

The  offer  made  by  the  defendants  to  prove  that  there  were,  in 
the  excinded  presbyteries,  churches  which  were  in  part  Congrega- 
tional, was  very  extraordinary,  and  was  rightly  rejected.  A  person 
or  body  who  is  connected  with  the  Presbyterian  Church  becom- 
ing Congregational  in  doctrine  and  order,  is  guilty  of  an  eccle- 
siastical offence,  for  which  he  can  be  tried  and  punished  by  the 
judicatories  of  the  church  alone.  Their  judgment  on  such  a  ques- 
tion is  final  and  conclusive,  provided  only  that  the  alleged  offenders 
have  had  notice  of  the  charge,  and  an  opportunity  of  being  heard 
on  a  fair  trial.  But  civil  tribunals  have  no  jurisdiction  in  cases  of 
heresy;  and  melancholy  will  be  the  prospects  of  religious  freedom, 
when  such  questions  shall  be  allowed,  directly  or  indirectly,  to  be 
brought  before  our  courts.  Lejgally  considered,  these  are  in  the 
hght  of  corporate  offences:  they  are  triable  in  the  corporate  courts 
alone,  and  on  the  principles  of  corporate  law.  The  public  tribunals 
of  the  country  can  inquire  no  further  than  into  the  fact  whether 
notice  and  a  hearing  were  accorded  to  the  parly  before  those  courts. 
If  they  were  not,  then  the  judgment  is  a  nullity;  if  they  were,  it  is 
conclusive:  but  in  neither  case  can  you  meddle  with  the  question 
of  the  truth  of  the  charge. 

In  the  remarks  which  it  has  been  my  duty  to  submit  to  the  court 
on  this  occasion,  I  have  endeavoured  to  avoid  unkindness  and  irri- 
tating comments.  Entertaining  as  I  do  (although  a  member  of 
another  church)  a  high  respect  for  the  adherents  of  both  the  par- 
ties which  divide  the  Presbyterian  Church,  I   still   cannot  avoid 


989 

speaking  of  the  course  pursued  by  the  Old  School,  as  one  of  unpa- 
ralleled harshness,  violence  and  injustice,  evincing  the  blind  domi- 
nation of  passion  and  party  feeling,  and  an  entire  disregard  of  the 
rights  of  their  brethren,  and  almost  of  the  common  charities  of  life. 

We  look  to  the  benign  influence  of  the  laws  to  compose  these 
differences.  Our  doors  remain  open  to  the  party  which  has  shut 
theirs  against  us;  and  when  your  decision  shall  be  pronounced,  it 
is  to  be  hoped  that  it  will  be  such  as  may  tend  to  restore  the  unity 
of  the  Presbyterian  Church,  and  promote  in  future  the  Christian 
graces  of  peace  and  good  will,  which  are  so  desirable  for  improve- 
ment and  example. 

However  much,  as  a  man,  I  regret  the  unhappy  dissensions  and 
heats  which  have  finally  rendered  this  proceeding  unavoidable,  I 
must  rejoice,  as  a  lawyer,  that  out  of  much  evil,  some  good  has 
flowed,  and  that  we  have,  in  the  charge  of  the  learned  judge  who 
tried  the  cause,  so  clear  and  rational  an  exposition  of  the  rights  of 
the  parlies,  and  of  the  principles  of  law  by  which  they  are  to  be 
ascertained  and  secured,  as  to  justify  the  hope  that,  when  sanction- 
ed by  the  decision  of  the  Court,  all  parties  hereafter  will  have  the 
ability  and  the  inclination  to  avoid  trespassing  on  the  privileges  of 
their  brethren,  and  bringing  discredit  on  the  church,  by  rendering 
necessary  an  appeal  by  the  injured  parties  to  the  civil  tribunals,  for 
protection  against  the  aggressions  of  those  who  have  knelt  at  the 
same  altar  as  themselves. 

Instead  of  selecting  a  text  for  the  opening  of  the  Assembly  (as 
the  moderator  of  1837  did  at  the  opening  in  '38)  which,  under  the 
circumstances,  appeared  like  the  language  of  exultation  and  triumph 
over  the  sixty  thousand  excinded  members  of  the  church,  I  would 
hope  that  the  reverend  gentleman  to  whose  lot  it  may  fall  to  per- 
form that  service  in  1839,  may  take  some  such  passage  as  this: 
^^  Whatsoever  things  are  true,  whatsoever  things  are  honest,  what- 
soever things  are  just,  whatsoever  things  are  pure,  whatsoever 
things  are  lovely,  whatsoever  things  are  of  good  report;  if  there  be 
any  virtue,  and  if  there  be  any  praise,  think  on  these  things." 

Mr.  Meredith  closed  his  argument  at  one  o'clock  on  Tuesday. 


A  BRIEF  SKETCH  OF  THE  ARGUMENT  OF  JOSIAH  RANDALL,  ESQ. 

Occupying^  a  part  of  Tuesday,  the  23d,  and  the  morning  of  Wednesday,  the  24th 

of  April. 

Mr.  Randall  stated  that  the  motion  for  a  new  trial  involved  two 
questions: 
-    I.  The  validity  of  the  excinding  resolutions. 

2.  The  organization  of  the  General  Assembly  in  1838. 

The  first  was  an  important  question,  involving  the  civil  and  reli- 
gious rights  of  a  large  portion  of  the  community,  and  property  to 
an  amount  that  could  not  even  be  ascertained. 

The  second  question  was  auxiliary  to  the  first,  subordinate  in  its 
character,  and  limited  in  its  consequences  and  results. 

50 


590 

The  excinding  resolutions  had  been  variously  described  by  the 
defendants'  counsel.  The  learned  counsel,  (^ir.  Hubbell,)  who 
opened  the  case  to  the  jury,  had  termed  ihenri  '■'•  detrudivg"  a  term 
most  appropriiile,  designaimg  the  thrusting  out  by  force.  During 
the  pre.^-enl  argument,  the  delendanis' counsel  had  adopted  the  term 
'^  disownivg,"  equally  graphic  and  poieniial  in  its  significaiion.  All 
these  terms  spread  the  same  idea,  an  abrupt  and  iorcible  depriva- 
tion of  religious  rights  and  privileges. 

It  was  necessary  to  define  the  constituent  character  of  a  pres- 
bytery. It  had  no  direct  connexion  with  churches.  A  reference 
to  the  Assembly's  Digest  containing  the  resolutions  forming  presbyte- 
ries, will  show  that  the  ministers  within  certain  bounds  uere  con- 
stituted a  presbytery.  Three  ministers,  withoui  a  single  church, 
may  keep  a  presbytery  alive,  but  a  presbytery  with  one  hundred 
churches,  without  three  ministers,  would  become  extinct.  A  refer- 
ence to  the  Presbytery  of  Newburyport  will  show  that  it  continues 
to  exist  with  but  two  churches,  and  is  regularly  represented  on  the 
floor  of  the  General  Assembly.  The  ratio  of  representation  of 
presbyteries  in  the  General  Assembly  is  according  to  the  number 
of  ministers,  who  are  represented  without  regard  to  the  fact  whe- 
ther they  are  pastors  (jf  a  church  or  not. 

These  excinding  resolutions  had  never  been  adopted  by  a  majori- 
ty of  the  Presbyterian  Church.  On  the  passage  of  the  resolution  ex- 
cluding the  Synod  of  the  Western  Reserve  there  were  65  members 
absent,  and  had  they  all  been  present  and  voted,  as  the  commissioners 
from  these  presbyteries  had  done  theretofore,  the  resolution  would 
have  been  negatived.  It  was  still  more  striking,  that  a  greater 
number  of  commissioners  were  absent  from  the  excluded  synods 
than  the  rriajoiity  lor  the  passage  of  the  resolution. 

Mr.  Kandall  then  exhibited  to  the  Court  the  returns  of  the  presby- 
teries of  New  York,  before  the  constitution  of  the  General  Assembly, 
showing,  that  of  the  twenty-one  churches  in  that  state,  in  1789, 
eleven,  v;ith  their  members,  elders  and  communicants, are  now  cut  off. 

That  these  churches  were  the  source  from  which  the  great  Pres- 
byterian family  had  sprung,  and  had  been  in  good  standing  be- 
fore any  gentleman  who  had  voted  for  the  excinding  resolutions, 
was  a  member  of  the  church. 

That  the  Plan  of  Union  between  the  Genera]  Association  of  Con- 
necticut, and  the  General  Assembly  of  the  Presbyterian  Church  in 
the  United  States  of  America,  was  constitutional.  It  had  existed 
previous  to  the  revolution,  had  been  sus[>ended  during  the  war,  and 
again,  at  the  invitation  of  the  General  Assembly,  proposed  immedi- 
ately on  the  passage  of  the  law  incorporating  that  body.  Similar 
arrangements  had  been  proposed,  or  entered  into  by  the  General 
Assembly,  with  the  Associations  of  Vermont,  JVlassachusetls,  New 
Hajnpshire,  the  Dutch  Reformed  Church  and  the  Associate  Re- 
formed Church. 

That  the  objection  that  the  Plan  of  Union  should  be  sent  down  to 
the  presbyteries  for  approval,  was  of  no  avail.  The  provision  in 
the  constitution,  which  requires  amendments  to  be  sent  down  to  the 
presbyteries,  relates  to  general  reguluiions,  and  not  to  the  admission 


591 

of  an  individual,  or  a  body  of  individuals  into  the  church.  That  the 
practice  of  the  General  Asseinbly  had  been  uniform  on  this  subject, 
in  iill  instances.  Resolutions,  admiliing  delegates  from  correspond- 
ing bodies  lo  sit  and  vote,  had  been  adopted  and  repealed,  without 
sending  them  down  to  the  f)resbyteries.  The  regulations,  admit- 
ting ordained  ministers  and  elders  from  other  Protestant  churches, 
without  reordination,  had  been  adopted  in  tlie  same  manner,  al- 
though the  General  Assembly  had,  for  a  series  of  years  theretofore, 
refused  such  admission.  That  a  c<^»nsiderable  portion  of  the  pre- 
sent church,  now  held  their  seats  by  the  same  tenure  under  the 
union,  with  the  Associate  Reformed  Church,  including  the  mode- 
rator of  183G,  (Dr.  Phillips,)  and  the  gentleman  who  officiated  as 
chairman  of  the  committees  appointed  on  this  subject,  by  the  Gene- 
ral Assembly  of  1837,  (Dr.  Juiikin.)  That  Dr.  Green  had  declared 
that  the  legality  of  the  union  with  the  Associate  Reformed  Church, 
had  never  been  denied.  That,  at  all  events,  an  acquiescence  of 
thirty-six  years,  removed  all  such  objections;  that  the  amended 
constitution  of  1821,  had  incorporated  all  these  materials  as  a  part 
of  the  church;  that  every  presbytery  in  the  church,  had  recognized 
the  Plan  of  Union,  and  that  subsequent  ratification  amounted  to 
previous  assent. 

That  the  character  of  this  plan  had  been  totally  misunderstood. 
It  related  to  the  "frontier  settlements,"  generally,  and  not  the  west- 
ern part  of  New  York,  and  the  Western  Reserve  of  Ohio.  That 
so  far  t'rom  its  authorizing  the  admission  of  any  Presbyterian  minis- 
ter into  the  church,  it  could  not  operate  upon,  nor  affect  him,  till  he 
had  become  previously,  l)y  ordination,  a  regular  Presbyterian  mi- 
iii-sier  in  good  standing.  Tiiat  it  had  been  proved,  and  was  not  de- 
nied, that  the  whole  five  hundred  and  seventeen  ministers  were  re- 
gularly ordained  ministers,  exclusive  from,  and  independent  of  the 
Plan  of  Union.  It  has  been  said  that  these  synods  have  been  the 
product  of  the  Plan  of  Union;  that  they  had  their  root  in  it.  This 
was  one  of  those  vague,  indefinite  assertions,  that  it  was  difficult  to 
understand.  The  Plan  of  Union  did  not  authorize  the  introduction 
or  ordination  of  any  minister  or  elder.  It  did  not  operate  upon  a 
juinister,  until  he  had  been  regularly  ordained  as  a  Presbyterian 
minister.  If  it  were  intended  by  this  argument  to  say,  that  of  the 
five  hundred  and  seventeen  Presbyterian  ministers  excluded,  any 
one  of  them  became  such,  by  the  Plan  of  Union,  it  was  contradicted 
by  the  instrument  itself,  by  its  character,  and  by  the  testimony  of 
every  witness  who  had  been  examined  on  the  subject.  This  argu- 
ment is  one  of  those  general  assertions,  in  their  nature  intangible, 
and  which,  when  accurately  examined,  means  nothing;  or,  what  is 
worse  than  nothing,  is  loosely  calculated  to  convey  an  idea  negatived 
by  the  whole  mass  of  testimony,  oral  and  documentary.  That  if 
the  plan  had  been  found  inconvenient,  or  was  believed  to  be  uncon- 
stitutional, the  proper  mode  was  to  repeal  it;  and  then,  if  any  Pres- 
byterian minister  should  violate  the  rules  of  the  General  Assembly, 
by  continuing  pastor  of  a  Congregationiil  or  mixed  church,  he 
would  become  obnoxious  to  censure  and  excommunication  from 
the  church,  accordirjg  to  its  forms  of  judicature. 


592 

That  as  it  now  stood,  the  General  Assembly  had,  in  1801,  "en- 
joined and  recommended"  Presbyterian  niinisters  to  preach  to  Con- 
gregational and  mixed  churches;  and  in  1837,  without  notice,  had 
excluded  ministers  for  obeying  the  injunctions  and  recommenda- 
tions of  the  General  Assembly. 

That  the  excinding  resolutions  were  contrary  to  all  law,  human 
and  divine,  and  were  utterly  unconstitutional  and  void.  It  excluded 
live  hundred  and  seventeen  ministers,  the  elders  of  five  hundred  and 
ninety-nine  churches,  and  sixty  thousand  communicants,  without 
accusation,  notice  or  trial.  It  was  founded  on  no  principle;  the 
present  Synod  of  Albany  had  been  left  untouched,  while  its  off- 
spring, the  three  Synods  of  Geneva,  Genessee,  and  Utica,  had  been 
cut  oti'.  The  Synod  of  the  Western  Reserve  had  been  first  created 
out  of  the  Pittsburgh  synod,  and  the  Synod  of  Michigan  has  been 
subsequently  created  out  of  the  Synod  of  the  Western  Reserve,  and 
while  the  intermediate  Synod  of  the  Western  Reserve  had  been  cut 
off,  the  Synods  of  Pittsburgh  and  Michigan  have  remained  untouch- 
ed. It  was  a  local  desecration  of  the  ground;  expulsion  from  the 
church  depended  on  the  domicil  of  the  member,  in  1837,  and  had 
Dr.  Green  at  that  time  lived  in  the  western  part  of  the  state  of  New 
York,  or  in  the  Western  Reserve  of  Ohio,  he  would  have  been 
excluded  among  the  rest.  It  excluded  all  indiscriminately,  whether 
they  have  been  connected  with  the  Plan  of  Union  or  not. 

That  the  General  Assembly  of  1837,  have  admitted  that  whole 
presbyteries  and  churches,  within  the  prescribed  and  infected  dis- 
tricts, were  regular  and  in  good  standing ;  and  provided  also  a  mode 
for  their  re-admission  into  the  church.  Th;it  the  alleged  exclusion 
for  a  day,  a  month,  a  year,  or  for  life,  were  equally  a  violation  of 
the  right  of  the  excinded  individuals  or  bodies.  That  this  mode  of 
re-ingress  into  the  church  was  illusory,  as  the  excinded  individuals 
could  obtain  re-admission  only  by  examination  in  the  same  manner 
as  if  they  had  never  been  connected  with  the  church.  That  the 
opening  counsel  had  not  denied  the  right  of  the  court  to  inquire 
into  the  form  of  proceedings  of  the  General  Assembly,  and  that  the 
case  cited  by  the  concluding  counsel  of  Mr.  Hindman  was  conclu- 
sive in  favour  of  the  power  of  the  court;  as  the  Supreme  Court  of 
Delaware  there  refused  the  mandamus,  because  the  relator  had 
confined  his  application  for  restitution  to  the  presbytery  as  an 
ecclesiastical  body,  and  not  to  the  presbytery  as  an  incorporated 
body,  and  the  court  there  said  that  they  would  have  entertained 
jurisdiction,  if  the  application  had  been  for  restoration  to  the  incor- 
porated presbytery. 

That  the  case  referred  to  in  Mr.  Hindman's  case  of  The  Com- 
monwealth of  Pennsyhania  vs.  Richards  and  others,  decided  in  1790, 
by  the  Supreme  Court  of  Pennsylvania,  on  a  mandamus  to  restore 
Mr.  Marshall  as  minister  of  the  Scots'  Presbyterian  Church  in 
Spruce  street,  was  conclusive  and  unanswerable  in  favour  of  the 
right.  That  if  this  power  were  not  conceded,  there  would  be  no 
remedy  or  relief  from  ecclesiastical  tyranny  and  injustice,  no  mat- 
ter how  unjust  or  irregular  it  might  be. 

That  the  act  of  the  clerks  in  excluding  the  commissioners  from 


593 

the  roll,  and  refusing  to  re])ortthem  to  the  assembly,  and  the  subse- 
quent conduct  of  the  moderator  in  refusing  to  put  the  motions  made 
to  rectify  the  misbehaviour  of  the  clerks,  were  overt  acts  of  a  con- 
spiracy to  carry  out  the  unconstitutional  acts  of  1837;  and  that  the 
refusal  of  the  moderator  to  put  the  appeal  of  Dr.  Mason  to  the  As- 
sembly, was  a  breach  of  privilege  which  authorized  any  member 
of  the  Assembly  to  move  for  his  dismission  from  office. 

That  Mr.  Cleaveland's  motion  was  substantially  a  proceeding  to 
remove  Dr.  Elliott  from  office  for  this  breach  of  privilege.  That 
questions  of  privilege  override  all  the  ordinary  rules  of  order. 

That  Mr.  Cleaveland's  motion  was  perfectly  intelligible,  and  suf- 
ficiently loud  to  be  heard  by  all.  That  every  member  had,  there- 
fore, an  opportunity  to  vote,  and  if,  under  such  circumstances,  they 
were  silent,  they  must  be  presumed  to  have  acquiesced. 

That,  according  to  parliamentary  rules,  when  the  commissions 
of  the  commissioners  of  the  General  Asseinbly  of  1838,  were  com- 
mitted to  the  Committee  of  Commissions,  they  could  only  be  restored 
to  the  x'\ssembly  for  the  Assembly's  action,  by  the  report  of  that 
committee.  That,  therefore,  the  conduct  of  the  clerks  composing 
the  committee  of  commissions,  in  refusing  to  report  the  commis- 
sions from  the  four  synods  on  either  of  their  lists,  was  a  gross  vio- 
lation of  duty. 

That  the  remedy  to  which  the  relators  had  resorted,  viz. :  this 
proceeding  oi quo  warranto,  was  both  legal  and  proper. 

That  the  moderator  could  not,  without  absurdity,  put  the  ques- 
tion lor  his  own  removal;  nor  did  that  duty,  under  such  circum- 
stances, devolve  upon  the  clerks.  They  were  parlicipes  criminis, 
and  would  not  have  put  the  motion  if  they  had  been  required.  That 
the  precedents  of  motions  put  by  clerks  were,  where  they  were  spe- 
cially authorized  by  the  house  to  put  the  questions. 

That  every  deliberative  body  which  elects  its  own  chairman,  has 
the  right  to  depose  him  for  misconduct.  That  the  moderator  of 
the  preceding  Assembly,  presiding  over  the  organization  of  the  suc- 
ceeding Assembly,  is  by  no  means  exempt  from  this  power.  He 
is  designated  to  the  office  ft»r  the  sake  of  convenience,  but  those  for 
whose  convenience  he  holds  the  office,  are  his  masters  and  he 
their  servant. 


ARGUMENT  OF  JOHN  SERGEANT,  ESa. 
Occupying  part  of  W'ednesday,  April  24th,  and  the  whole  of  Thursday  and  Friday. 

Mr.  Randall  having  concluded,  at  1  o'clock  Mr.  Sergeant  ad- 
dressed the  court.  He  said: — It  seems  to  be  the  opinion  of  one  of 
the  learned  counsel  on  the  other  side  that  these  panics  might  very 
readily  make  peace  and  come  together  again.  That  attempt  had 
been  made,  but  failed.  The  exhibition  which  has  been  presenied  in 
the  trial,  and  the  argument  before  this  court,  ought  to  make  us  very 
cautious  in  acting,  with  a  view  to  bring  the  parties  together  again. 
1  understand  (and  that  will  be  the  main  ground' of  my  argument) 

50* 


594 

that  the  object  and  end  of  this  great  judicatory  of  the  Presbyterian 
Church,  as  well  as  all  the  subordinate  ones,  is  purely  spiritual  and 
moral.     We  have  no  right  to  interfere  wiih  that  in  vxhich  a  man's 
own  conscience  is  concerned.     No  human  tribunal  has  any  right 
to  interfere  with  it.     It  is  a  manifest  violation  of  that  right  to  talk 
of  forcing  people  into  spiritual  connexion.     I  hold  the  attempt  itself 
to  be  unconstitutional,  inconsistent  with   spiritual   liberty,  and  as 
striking  at  the  foundation  of  one  of  the  grent  principles  of  liberty 
amono-  this  people,  and  that  is,  that  a  man's  spiritual  and  moral  con- 
cerns are  not  to  be  interfered  with  by  any  temporal  tribunal  what- 
ever.   These  parties  never  came  together  except  by  consent.    They 
never  could   come  together  in  this  world  but  by  consent.     As  to 
the  idea  of  forcing  one  community  of  men  to  sit  down  to  the  same 
spiritual  table  with  another  whom  they  think  unworthy,  you  must 
first  be  prepared  to  search  the  hearts  and  consciences  of  both,  be- 
fore vou  could  tell  what  the  consequence  was  to  be.     I  take  it, 
therefore,  that  the  prediction  which  has  just  been  made  cannot  be 
correct.     I  go  for  freedom,  and  am  opposed  to  force,  no  matter 
from  whence  it  comes.     It  may  be  seen,  after  all,  whether  we  have 
suffered  in  our  name,  reputation,  and  character;  whether  we  are 
not  the  real  champions  of  spiritual  liberty.     I  believe  that  we  are. 
I  believe,  at  the  same  time,  that  the  eifort  here  made,  by  the  mi- 
nority of  that  General  Assembly,  is,  through  the  instrumentality 
of  civil  coercion,  to  deprive  the  party  which  I  represent  of  their 
liberty,  and  to  force  them  to  associate  with  those  whom  they  do 
not  choose  to  associate  with.     The  idea,  it  will  be  seen,  is  repul- 
sive, and  no  doubt  it  would  be,  in  its  application,  a  most  dangerous 
power.     I  will  undertake  to  say  that  it  would  be  a  most  dangerous 
power  for  a   civil  tribunal   to  take   upon  itself,  to  say  who  was 
wrong   and  who   right   in  a   matter   of  conscience.      The  courts 
have   already  enough  to   do,  without  being  called   upon  to  enter 
upon   new   sources   of  inquiry,   touching    matters    of  conscience, 
and  with   which   civil  tribunals   have   heretofore   had  nothing  to 
do.     We  have   been  warned   not  to  hold  out  threats.     We  have 
held  out  no  threats.     We  have  given  no  intimation  of  that  sort ;  but 
that  litigation  will  follow  the   decision;  that  every  church,  every 
single  congregation,  every  presbytery,  every  synod  will  be  called 
upon  to  decide  for  itself,  is  as  certain,  plain  and  pal[)able  as  any 
ihinur  can  be  :  nay,  every  individual.     The  minority  of  the  Gene- 
ral Assembly  of  1838  have  done  a  great  deal,  if  they  really  have 
been  able  to  accomplish  what  his  honour.  Judge  Rodgers,  at  the  time 
he  delivered  his  charge,  seemed  to  think  they  had  done.     If  it  were 
not  loo  serious  a  matter  to  make  a  joke  of,  although  it  would  be  a 
much  more  innocent  joke  than  they  have  made  at  our  expense,  I 
would  say,  that  the  occurrence  in  Ranstead  court,  by  which  a  mi- 
nority manoeuvred  a  majority  out  of  doors,  was  the  greatest  pr;icti- 
cal  hoax  that  I  ever  heard  of.     A  great  deal  has  been  done  calcu- 
lated to  produce  disturbance,  discord  and  confusion  throughout  the 
church,  by  failing  to  observe  that  excellent  admonition,  which  ought 
never  to  be  lost  sight  of,  to  let  spiritual  bodies  settle  spiritual  ques- 


5m 

tions.  I  will  endeavour  to  show  the  court,  before  I  conclude,  that 
the  attempt  here  making  is,  to  strip  the  General  Assembly  of  this 
power,  to  take  it  into  the  hands  of  the  ministers  of  the  civil  law;  to 
take  it  into  their  hands  in  a  manner  which  leads  to  the  disgrace  and 
disparagement  of  the  law  itself,  as  far  as  disgrace  and  disparage- 
ment can  be  brought  upon  it  by  such  eftbrts.  Where  is  the  man 
who  had  been  spared  on  this  occasion?  The  spirit  manifested  on 
this  trial  is  the  same,  which,  by  the  first  act  of  the  Assembly  on 
Washington  square,  cut  off  the  venerable  Dr.  Green,  the  patriarch 
of  his  church.  Neither  age,  nor  services,  nor  character,  nor  ought 
else,  could  shield  the  true  members  of  the  Presbyterian  Church 
from  the  asperity  and  violent  denunciations  of  those  on  the  other 
side.  Look  at  the  intimation  by  one  of  the  counsel  for  the  relators, 
that  Dr.  Elliott  had  been  furnished  with  the  text  from  which  he 
preached  on  opening  the  General  Assembly  of  1838,  by  the  prompt- 
ings of  a  spirit  of  partisanship.  The  learned  counsel  had  gone  so 
far  as  to  look  into  the  conscience  and  heart  of  that  moderator,  and 
to  charge  him  with  having,  in  the  performance  of  a  solemn  service, 
and  in  the  presence  of  his  Maker,  used  the  text  he  did  as  the  shout 
of  victory. 

My  clients  do  not  need,  from  me,  a  vindication  of  their  conduct 
and  temper;  the  very  opposite,  as  they  are,  of  the  feeling  and  tem- 
per displayed  on  the  other  side,  in  the  progress  of  this  cause.  I 
maintain,  that  we  are  the  champions  of  civil  liberty  and  the  rights  of 
conscience.  And,  however  we  may  suffer  in  that  cause,  finally,  if 
it  is  the  right  cause,  as  I  believe  it  to  be,  it  must  and  will  prevail; 
and  if  this  case  is  rightly  decided,  we  shall  come  back  to  the  plain 
principles  of  the  constitution  and  the  law  of  this  commonwealth, 
which  leaves  these  things  to  be  adjusted,  not  by  a  civil  tribunal,  but 
a  spiritual,  even  by  Him  to  whom  we  are  all  accountable.  But  now, 
the  question  presented  to  this  Court  is,  whether  the  defendants  are 
not  entitled  to  have  a  new  trial?  The  cause  is  one  involving  ques- 
tions of  great  magnitude  and  importance;  none  greater  can  ever 
arise,  than  they  are.  It  is  my  intet)tio!)  to  say  nothing  personally 
disparaging  of  any  man  connected  with  the  New  School  party, 
nor  to  say  one  word  which  should  be  calculated  needlessly  to 
wound  his  feelings.  I  entertain  great  respect,  too,  for  the  learned 
judge  who  presided  at  the  trial  in  the  court  below,  and  am  sure  that 
he  found  not  less  arduous  than  novel  and  intricate,  the  duties  which 
he  had  then  to  perform.  In  a  case  so  complex  and  abstruse  as  this, 
great  allowance  must  be  made  for  a  judge  who  should  fall  into 
error.  And,  if  the  learned  judge  who  tried  this  case  had  seen,  on 
reflection  since,  that  he  had  committed  any  error,  he  will,  doubtless, 
be  glad  of  the  opportunity  afforded  him  now,  of  correcting  it.  But 
if  he  sees  no  reason  to  alter  his  mind,  why,  then,  he  will  adhere  to 
his  former  opinion,  but  not  simply  because  it  was  his  opinion.  I 
must  be  allowed  to  say,  that  when  this  case  went  to  the  jury,  and 
even  before  it  did,  it  went  with  a  most  manifest  prejudice  against 
these  defendants.  As  to  how  that  was  effected  I  shall  have  an  op- 
portunity to  speak  hereafter.     I  maintain  this  great  principle,  that 


596 

the  whole  investigation  in  the  manner  in  which  it  has  been  conducted, 
the  whole  decision,  as  far  as  it  has  gone,  is  a  manifest  viulaiion  of 
our  constitution.  I  mean  the  constitution  of  the  church  ;  and  a  vio- 
lation of  spiritual  liberty,  and  the  rights  of  conscience.  I  now  ask 
whether  this  court  is  a  fit  court  to  entertain  an  appeal  from  the 
General  Assembly  of  tlie  Presbyterian  Church?  1  speak  of  the 
embarrassment,  the  difficulty,  and  the  almost  impossibility  of  com- 
ing to  any  conclusion  on  an  appeal  like  this.  Take,  for  example, 
the  resolutions  of  1837.  Now,  if  this  court  is  to  be  appealed  to, 
from  that  General  Assem.bly,  then  it  is  to  take  the  place,  for  a  mo- 
ment, of  the  General  Assembly,  and  is  to  decide  whether,  under  the 
same  circumstances,  it  would,  or  would  not,  have  pursued  the  same 
course  as  that  body  did.  And,  in  order  to  show  your  honours  that 
you  would  not  have  pursued  the  same  course,  what  has  been  said, 
what  has  been  attempted,  on  the  other  side?  Why,  the  very  first 
blow  was  made  at  the  intentions  and  motives  of  the  respondents,  and 
they  were  charged  with  having  been  actuated  by  a  proud  lust  of 
power,  and  being  desirous  to  engross  to  themselves  all  the  funds  of 
the  church.  Indeed,  every  thing  that  is  bad  and  disgraceful  has 
been  attributed  to  them.  The  most  foul  and  scandalous  abuse  has 
been  heaped  upon  them.  There  was  gross  injustice  in  the  outset  of 
this  cause;  and  with  regard  to  that,  I  mean  to  be  perfectly  expli- 
cit. His  honour,  judge  Rodgers,  had  fallen  into  an  error,  which 
probably  arose  from  the  press  and  hurry  on  the  occasion  of  the 
trial,  circumstances  which  will  have  their  influence  upon  a  judge  as 
well  as  on  others.  The  learned  judge  would  find  that  a  certain 
act  of  their  body  was  an  act  they  had  a  right  to  do,  although  he 
went  on  to  characterize  it  as  unjust.  No  doubt  that  in  the  course 
of  the  discussion  injustice  had  been  attributed  to  it,  and  perhaps 
most  unjustly.  His  honour  was  led  not  to  look  at  the  lawfulness  of 
the  act  that  was  done  merely,  but  at  the  question  whether  it  was 
just  or  unjust.  I  mean  to  contend,  without  hesitation  or  reserve, 
that  where  their  acts  are  not  unlawful,  no  one  has  a  right  to  inquire 
into  the  motives  that  actuated  them,  or  into  the  justice  or  injustice 
of  the  act  they  had  done.  They  were  there  to  do  justice  according 
to  their  own  views,  and  not  according  to  the  views  of  any  one  else. 
They  were  placed  there  to  do  justice  without  accountability  to  any 
tribunal,  so  far  as  they  were  lawfully  entrusted  with  power.  The 
very  principle  of  the  organization  of  the  church  being  to  deal  only 
with  spiritual  matters,  it  was  not  to  be  effected  by  any  man's 
thoughts,  words,  or  actions.  I  appeal  to  your  honours  to  say 
whether  it  was  fair  that  the  New  School  party  should  inquire  into 
the  motives  of  Dr.  Elliott  and  the  clerks.  It  was  right  only  to  judge 
them  by  their  acts.  An  act,  which  otherwise  would  be  rightful, 
was  made  to  depend  upon  the  motives  with  which  it  was  done. 
Now  that  was  an  unfair  way  of  proceeding.  The  relators  are  alone 
to  blame  for  having  introduced  the  subject  of  this  controversy  to  a 
civil  tribunal.  Whatever  inflammation  may  hereafter  be  produced, 
whatever  scandal  may  be  brought  on  religion,  if  it  were  in  the 
power  of  man  to  scandalize  it,  it  certainly  is  not  imputable  to  the 


1 


597 

respondents.  The  relators  only  are  responsible  for  it.  And,  if 
they  have  I. ad  a  ahort  victory  once,  it  is  possible  that  they  may  yet 
see,  as  tliey  advance  in  life,  as  their  shadows  lengthen  and  the  dis- 
tance before  them  is  contracted,  occasion  to  mourn  that  they  ever 
separated  themselves  from  the  good  inen  with  whom  they  were  as- 
sociated, by  any  course  of  events  in  this  world.  The  example 
which  has  been  set  by  these  men  will,  pcradventure,  be  followed 
hereafter,  by  those  who  are  the  younger  and  more  active  spirits,  to 
cut  off  their  leaders,  as  has  been  attempted  to  be  done  on  this  occa- 
sion. This  case  will  furnish  them  with  a  precedent  for  their  con- 
duct. Nor  is  this  all.  The  church  indeed  is  "  on  a  rock,"  but,  this 
spirit  once  introduced  into  the  church,  who  can  exorcise  it?  I 
have  already  said  that  I  am  not  afraid  of  any  man  being  able  to  ac- 
complish the  destruction  of  the  church,  for  I  believe  it  to  be  founded 
on  a  rock.  But  what  man  can  allay  this  spirit  when  once  it  has 
been  brought  in  ?  No  man  :  there  it  will  remain  and  riot  in  the 
destruction  of  peace  and  goodness.  If  the  youth  now  by  injustice 
cut  off  the  fathers  and  props  of  the  church,  it  will  not  be  strange,  if 
before  they  are  as  old  as  Dr.  Green,  others  visit  the  same  award 
to  them. 

But  now  our  business  is  to  show  that  this  verdict  ought  not  to 
stand.  Indeed  it  seems  hardly  necessary  after  the  admirable 
opening  of  my  colleague,  (to  which  indeed  the  closing  counsel  on 
the  other  side  has  paid  a  well-merited  compliment,)  to  occupy  time 
farther  on  this  subject. 

But  it  may  be  due  to  the  opposite  counsel  to  notice  some  of  their 
arguments,  and  perhaps  I  may  be  able  to  throw  out  some  sugges- 
tions in  addition  to  those  of  my  worthy  and  able  colleague. 

In  reply  to  the  arguments  in  support  of  this  verdict,  1  will  exam- 
ine the  ground  on  which  it  must  stand,  if  it  stand  at  all.  In  the 
charge  of  his  honour,  judge  Rodgers,  the  excinding  acts  of  1837 
are  regarded  as  unconstitutional  and  void. 

Well,  if  they  were  so,  it  was  of  no  consequence.  The  case  ought 
then  to  be  considered  only  with  reference  to  the  proceedings  of 
1838.  But  his  honour,  like  the  counsel,  had  made  those  acts  of  1837 
to  characterize  the  conduct  of  the  moderator  and  clerks,  as  being  a 
violation  of  duty,  authorizing  the  proceeding  of  Cleaveland  and 
others.  The  excinding  acts  of  1837,  were,  therefore,  the  basis  of 
the  whole  of  the  proceedings.  Now,  I  contend  that  the  General 
Assembly  of  1838  would  not  have  been  justified,  even  if  so  dispo- 
sed, in  removing  the  moderator  and  clerks,  for,  they  being  appointed 
by  the  General  Assembly  of  1837  to  perform  certain  duties,  to 
organize  the  body  of  1S3S,  they  consequently  were  not  their  chosen 
officers,  and  not  subject  to  their  control.  There  was  no  power 
vested  in  the  preparatory  meeting  to  remove  officers  not  of  their 
own  appointment.  There  can  be  no  doubt  that  in  the  whole  of 
these  proceedings,  the  great  principle  that  the  majority  must  govern 
was  disregarded  by  the  minority,  and  hence  the  former  were 
driven  out  of  doors.  While  Dr.  Elliott  was  in  the  chair,  there 
could  be  no  other  moderator.     And,  the  first  question  which  your 


598 

honours  have  to  decide  is,  whether  that  gentleman  was  the  presi- 
ding officer.  Now,  if  Dt.  Elliott  was  the  moderator,  am  I  to  be 
considered  as  voting  on  the  question  of  electing  another  moderator, 
when  I  did  not  vote  at  all,  and  when,  too,  1  sat  with  my  back  to  the 
man  proposed  to  be  elected?  That  proceeding  was  inconsistent 
with  every  rule  of  order,  was  calculated  to  mislead,  to  blind,  to 
take  away  the  hearing,  to  prevent  every  man  in  that  Assembly  irom 
knowing  what  he  was  to  do.  I  contend  that  members  were  not 
bound  to  notice,  or  to  vote  upon  any  question,  unless  it  were  put 
by  the  legally  constituted  and  authorized  presiding  officer  of  the 
General  Assembly.  No  one  could  tell  wliether  that  "  Aye,"  that 
triumphant  "Aye"  which  was  given  amidst  so  much  disorder,  pro- 
ceeded from  those  on/y  who  had  a  right  to  vote.  Judge  Rodgers  had 
said  tliat  none  but  those  who  were  enrolled  had  a  right  to  vote. 
Now,  if  the  question  had  been  put  by  the  moderator,  he  would  have 
suffered  none  to  vote  but  those  who  were  enrolled.  The  question, 
however,  was  put  by  another.  And,  whether  they  were  members 
or  not  who  voted,  did  not  matter  much,  as  the  act  was  entirely 
wrong.  Besides,  there  was  a  large  assemblage  of  persons  present 
as  spectators,  many  of  whom  might,  and  perhaps  did,  join  in  tlie 
"thundering  loud  Aye,"  as  it  had  Fjeen  called. 

In  my  opinion,  the  principle  point  in  the  whole  case  hinges  upon 
the  question  of  order.  It  is  of  considerable  importance,  then,  that 
it  should  be  first  ascertained  whether  the  moderator  strictly  per- 
formed his  duty.  Before  proceeding  to  an  examination  of  the  acts 
of  1837,  I  wish  to  make  a  single  remark  further  in  connexion  with 
this  topic,  which  may,  from  its  importance,  be  more  particularly 
noticed  hereafter.  The  General  Assembly  of  the  Presbyterian 
Church,  at  the  time  the  disturbance  took  place,  was  in  actual  ses- 
sion, de  facto  and  de  jure.  It  was  stated  by  his  honour,  judge  Rod- 
gers, in  his  charge,  and  it  was  admitted  in  argument  on  the  other 
side,  that  the  resolutions  of  1837,  whether  right  or  wrong,  did  not 
dissolve  the  AsseiTibly.  Now,  at  the  period  when  the  disturbance 
took  place,  the  body  was  partially  constituted,  and  the  moderator 
competent  to  conduct  the  organization  to  completion.  I  trust  then 
that  your  honours  will  certainly  see,  that  it  lies  with  the  opposite  side 
to  show,  liow  the  Old  School  party,  or  rather  the  moderator  and 
clerks,  ceased  to  be  in  possession,  either  de  jure  or  de  facto.  I 
declare  that  I  think  no  man  could  doubt,  that  the  body  who  re- 
mained in  Ranstead  court,  was  the  rightful  and  legal  body.  Icon- 
tend  that  the  rule  of  order  in  every  deliberative  Assembly,  how- 
ever informal  it  may  be,  is,  that  every  eye  and  ear  should  be  di- 
rected to  the  chair.  No  member  has  a  right  to  turn  his  back  upon 
the  presiding  officer,  nor  can  any  man  be  regarded  as  voting  who 
does  so.  With  regard  to  the  acts  of  the  General  Assemblv  of  1S37, 
it  is  a  (]uestion  hereafter  to  be  decided,  whether  they  can  be  at  all 
connected  with  what  look  place  in  1838.  But  I  shall  contend  that 
they  could  not  be  connected,  whether  right  or  wrong.  I  assume, 
and  have  a  right  to  assume  it,  that  the  Assembly  of  1837,  in  passing 
the  resolutions  which  they  did,  were  really  sincere,  honest,  and 


509 

thnt  they  meant  them  in  good  faith  as  they  declared  them  to  be, 
for  the  good  of  the  church.  And,  I  do  most  solemnly  protest 
against  the  right  of  any  body  on  earth,  1  care  not  who  it  is,  to  in- 
terfere with  their  acts  so  adopted.  I  will  presently  read  to  your 
honours,  that  part  of  the  constitution  of  Pennsylvania,  which  1  con- 
ceive to  have  a  bearing  on  this  case.  It  is  of  infinite  importance. 
We  have  lost  this  case  before  the  jury,  and  if  we  are  to  lose  it  final- 
ly, we  are  to  lose  it,  in  a  great  measure,  in  consequence  of  the  im- 
plication to  us  of  insincerity,  want  of  truth,  and  bad  motives,  in  the 
introduction  and  adopton  of  the  resolutions  of  1837.  Every  license 
has  been  taken  with  the  evidence,  assumptions  contrary  to  the  truth 
have  been  drawn  from  it,  as  to  the  character  of  the  General  As- 
sembly. I  will  submit  it  to  your  honours,  as  a  clear  position,  that 
every  judicatory  of  this  church,  from  a  session  up  to  the  General 
Assembly,  is  entitled  to  be  believed  as  to  its  motives,  in  whatever  it 
does  in  reference  to  its  spiritual  and  moral  discipline.  If  it  can  not 
be  believed  to  be  prompted  by  pure  motives,  then  it  is  not  a  church 
in  any  sense  in  which  those  belonging  to  it  are  supposed  to  consti- 
tute it:  they  are  a  set  of  hypocrites  and  sinners  of  the  very  worst 
description.  But  even  if  this  were  so,  so  long  as  they  do  not  violate 
the  laws  of  the  country,  you  can  not  interfere  with  them.  But,  be- 
fore proceeding  farther,  I  wish  to  have  this  question  settled.  To 
whom  does  it  belong  to  say  that  these  acts  are,  or  are  not,  for  the 
good  of  the  church?  Supposing  a  certain  end  to  be  desirable,  to 
whom  does  it  belong  to  decide  as  to  how  that  end  can  be  reached? 
Now,  presuming  the  first  question  to  be  decided,  who,  I  ask,  is  to 
solve  the  second.  The  civil  tribunal  says,  it  is  to  be  reached  by 
process.  The  church  says.  No;  we  have  no  charge  to  make 
against  our  brethren  with  whom  we  have  been  in  unity.  We  do 
not  mean  to  dismiss  our  brethren  from  the  church  with  any  mark 
of  condemnation  upon  them.  We  do  not  mean  to  try  them,  or  im- 
peach their  motives  or  conduct.  All  that  we  mean  to  say  is,  that 
they  do  not  live,  as  we  think,  according  to  the  proper  forms  of  the 
church,  and  that  disorders  have  arisen  from  it.  We  wish  to  sepa- 
rate from  them,  and  the  act  involves  nothing  but  separation.  Now, 
I  would  ask  again,  not  whether  this  was  the  wisest,  or  the  best 
mode  of  proceeding,  but  who  was  to  judge  whether  it  was  or  not? 
Did  it  belong  to  the  church,  or  to  a  civil  tribunal,  to  insist  upon  it 
that,  contrary  to  their  judgments,  contrary  to  their  own  views  of 
what  is  best  to  advance  religion  in  general  and  the  protection  of 
their  own  church,  they  must  do  so  and  so?  If,  in  fact,  any  body 
could  interfere  with  the  church,  they  had  better  dissolve  themselves 
as  a  church  at  once.  If  they  could  not  exercise  their  w/fo/e  judg- 
ment, it  was  in  vain  to  endeavour  to  exercise  any  judgment  at  all. 
I  insist  that  they  had  a  right  to  manage  their  church  according  to 
the  dictates  of  their  conscience,  and  no  man  or  tribunal,  was  justi- 
fied in  interfering  with  them.  I  will  endeavour  to  maintain  that  no 
civil  tribunal  could  rightly  take  cognizance  of  this  question.  I  do 
not  mean  to  anticipate  the  question  whether  this  court  could  take 
cognizance  of  the  election  of  trustees.  I  will  come  to  that  question 
by  and  by.     But  I  will  say  of  the  question  growing  out  of  the  acts  of 


600 

1837,  that  no  civil  tribunal  could  take  cognizance  of  them ;  that  they 
belong  exclusively  to  the  judicatories  ot"  the  church.  I  know  that 
in  taking  this  position  I  have  to  encounter  the  harsh  denunciations 
which  have  been  lavished  by  the  other  side.  I  have  to  encounter 
the  inquiries,  "  Why  did  you  not  take  process?  Why  did  you  not 
give  thenn  a  hearing?"  I  know  too  that  I  have  to  encounter  sonne- 
thing  more  ft)rmidable  in  the  opinion  of  judge  Rodgers  on  this  point. 
To  that  I  am  bound  to  give  the  more  special  attention.  I  have  ex- 
amined it  very  carefully,  and  with  all  the  respect,  and  that  is  cer- 
tainly not  a  little,  which  is  due  to  its  distinguished  author.  I  do 
not  know  that  I  had  ever  bestowed  so  much  deliberation  on  any 
single  question,  as  I  have  done  on  this,  with  a  view  to  see  its  bear- 
ings in  every  particular,  and  to  avoid  every  false  track.  1  will  now 
proceed  to  place  before  your  honours,  the  grounds  upon  which  I 
rest,  and  the  conclusion  to  which  I  have  come.  The  charge  says 
that  the  excinding  resolutions  are  unconstitutional  and  void,  but  adds, 
that  that  did  not  dissolve  the  Assembly. 

In  regard  to  the  abrogation  of  the  Plan  of  Union,  the  charge  is  in 
our  favour;  for  the  judge  says  that  the  Assembly  had  a  right  to 
abrogate  it.  We  have  therefore,  his  honour's  opinion  in  favour  of 
abrogating  the  act  of  union  of  1801.  I  am  glad  to  have  it.  Well, 
here  was  thtj  hinge,  on  which  the  whole  matter  turned  ;  for,  it  hav- 
ing been  supposed  that  the  abrogation  was  wrong,  the  argument 
had  been  drawn  that,  consequently,  all  the  acts  which  followed  in 
1837,  and  all  that  took  place  in  1838,  consequent  upon  them,  must 
be  wrong.  It  is  necessary  to  consider  the  nature  of  the  thing  done, 
viz:  whether  it  was  purely  ecclesiastical  and  moral,  or  whether  it 
was  civil  in  its  character  and  consequences.  The  views  entertain- 
ed by  the  Assembly  on  this  subject  appear  to  be  both  unexceptiona- 
ble and  incontrovertible.  Let  us  look  at  their  language  in  the 
series  of  resolutions  on  this  very  subject. 

Now,  we  contend  that  the  relation  between  the  Congregational 
and  Presbyterian  Churches  was  voluntary.  It  was  voluntary 
throughout,  from  beginning  to  end,  up  to  the  time  when  the  excinding 
acts  were  passed.  Such  is  the  tenor  of  the  resolutions  to  which  I 
refer. 

"In  regard  to  the  relation  existing  between  the  Presbyterian  and 
Congregational  Churches,  the  committee  recommend  the  adoption 
of  the  following  resolutions: 

1.  "  That  between  these  two  branches  of  the  American  Church, 
there  ought,  in  the  judgment  of  this  Assembly,  to  be  maintained  sen- 
timents of  mutual  respect  and  esteem,  and  for  that  purpose  no  rea- 
sonable efforts  should  be  omitted  to  preserve  a  perfectly  good  un- 
derstanding between  these  branches  of  the  Church  of  Christ. 

2.  "That  it  is  expedient  to  continue  the  plan  of  friendly  inter- 
course, between  this  Church  and  the  Congregational  Churches  of 
New  England,  as  it  now  exists." 

It  must  be  understood,  and  we  have  no  right  to  suppose  other- 
ways,  that  every  word  of  this  is  honestly  said,  from  the  heart,  and 
certainly  there  is  nothing  harsh  or  disparaging  to  Congregational- 


601 

ists.  All  we  say  on  that  subject  is,  that  Congregationalism  is  in- 
compatible with  Presbyterianism,  that  the  two  cannot  live  together, 
and  that  it  is  calculated  to  produce  disorder,  when  introduced 
among  us,  as  in  the  famous  case  of  Mr.  Bis^^ell  from  Rochester,  who 
found  his  way  into  the  General  Assembly,  although  neither  a  com- 
mittee-man, nor  an  elder.  In  view  of  such  circuioslances,  among 
others,  we  adopted  the  following,  the  third  in  the  series  of  reso- 
lutions. 

3.  "But  as  the  'Plan  of  Union'  adopted  for  the  new  settlements 
in  1801,  was  originally  an  unconstitutional  act  on  the  part  of  that 
Assembly — these  important  standing  rules  having  never  been  sub- 
mitted to  the  presbyteries — and  as  they  were  totally  destitute  of 
authority  as  proceeding  from  the  Genernl  Association  of  Connecti- 
cut, which  is  invested  with  no  power  to  legislate  in  such  cases,  and 
especially  to  enact  laws  to  regulate  churches  not  within  her  limits; 
and  as  much  confusion  and  irregularity  have  arisen  from  this  un- 
natural and  unconstitutional  system  of  union,  therefore,  it  is  resolv- 
ed, that  the  Act  of  the  Assembly  of  1801,  entitled  a  'Plan  of  Union,' 
be,  and  the  same  is  hereby  abrogated." 

Now,  they  do  not  say,  as  seems  to  be  taken  for  granted,  that 
there  was  a  designed  violation  of  the  constitution  in  adopting  the 
plan  at  first,  but  they  say  that  the  making  of  these  standinii;  rules 
was  wrong,  that  they  ought  not  to  have  been  adopted,  that  that  act 
was  destitute  of  authority,  and  led  to  confusion  and  disorder. 
Now,  that  these  grounds  for  the  abrogation  existed,  no  man  can 
doubt.  And  this  being  the  fact,  I  must  think  that  no  man  can  doubt 
that  the  General  Assembly  had  a  right  to  abrogate  the  Plan  of 
Union.  What  objection  could  there  be.  I  contend  that  it  could 
be  done  at  any  time  by  the  wish  of  a  majority,  the  association  being 
purely  of  a  religious  character.  It  was  also  clearly  expedient  and 
right  to  abrogate  it,  in  consequence  of  the  disorders  which  it  had 
introduced.  They  say  it  had  introduced  such  disorders,  and  we 
are  bound  to  believe  them.  Now,  this  being  an  adjudication  to 
which  they  had  a  right,  it  being  their  proper  province,  what  tribu- 
nal on  earth  has  any  right  to  sit  in  judgment  over  it,  to  pronounce 
it  right  or  wrong,  just  or  unjust  1 

But  a  question  is  raised  here  whether  this  Plan  of  Union,  or 
agreement,  were  not  in  some  sort  of  the  constitution  of  a  compact; 
as  though,  in  bodies  purely  spiritual,  there  could  be  any  thing  in 
the  nature  of  a  consideration,  which  is  essential  to  a  contract.  The 
idea  is  absurd.     These  bodies  could  form  no  contract. 

Then  a  question  is  made  whether  these  excindiiig  acts,  as  they 
are  called,  are  judicial  or  legislative;  still  it  really  seems  to  me, 
that  all  such  questions  are  idle.  I  shall  call  these  acts  administra- 
tive. I  think  they  are  merely  such,  for  they  are  designed  to  carry 
into  effect  the  resolution  abrogating  the  Plan  of  Union.  I  will  here 
recite  these  excluding  resolutions.  [See  pages  56  and  57  of  this  re- 
port, resolutions  numbered  1,  2,  3,  4.]  "  It  heiiig  made  clear  to  us," 
says  the  second  resolution,  "  it  being  made  clear  to  us.''     To  whom 

51 


602 

should  it  be  made  clear  that  they  had  ground  of  action  ?  To  your 
honours  1 

Suppose  that  I  were  to  tell  you  that  they  were  Baptists,  or  Con- 
gregaiionalists,  or  Roaian  Catholics,  or  Jews:  your  honours  would 
say  that  that  was  a  question  which  you  had  no  right  to  inquire  into, 
that  you  had  no  right  to  condemn  them  for  any  alleged  disorder  in  the 
church,  that  you  were  not  the  representatives  of  the  Presbyterian 
Church,  or  any  other  tribunal,  or  sect.  The  constitution  of  Penn- 
sylvania says,  that  "every  man  shall  worship  God  in  his  own  way, 
that  no  human  authority  can,  in  any  case  whatever,  control  or  in- 
terfere with  the  rights  of  conscience."  I  assert  that  the  second 
resolution  must  be  taken  to  be  true.  It  /lad  been  made  clear  to 
them,  whose  business  it  was  to  inquire  into  these  spiritual  matters, 
and  their  declaration  of  that  fict  is  all  that  we  need  to  know,  in 
order  to  bar  the  action  of  any  civil  court  in  the  premises;  we  can- 
not touch  them  for  this.  What  judicial  tribunal  in  this  country, 
would  dare  thus  to  erect  themselves  into  an  ecclesiastical  tribunal, 
and  especially  into  the  judicatory  of  a  particular  church? 

But,  if  these  acts  might  thus  be  investigated  by  the  civil  courts, 
what  is  their  character?  The  third  of  these  resolutions  expressly 
declares,  that  they  have  "no  intention  to  interfere  with  the  duties 
or  relations  of  private  christians,"  &c.  "  but  only  to  declare  and  de- 
termine according  to  the  truth  and  necessity  of  the  case,  the  rela- 
tion of  these  synods,"  &c.  Now  this  was  clearly  what  they  had  a 
right  to  do  by  the  constitution  of  the  church.  And  then  in  regard 
to  "saving  the  rijihts  of  ministers.  &c."  of  which  so  much  has  been 
said,  the  4th  resolution  makes  am[)le  provision  for  that,  by  directing 
"  those  who  are  strictly  Presbyterian  in  doctrine  and  order,"  how 
they  may  enjoy  their  privileges  and  rights.  In  saying  that  the 
General  Assembly  "  will  take  proper  order  thereon,"  they  bind  them- 
selves, or  declare  that  they  will  receive  those  who  are  strictly 
Presbyterian. 

Now,  as  to  the  question  whether  they  had  a  right  to  do  this,  we 
must  consider  the  nature  of  the  acts,  and  the  nature  of  the  body 
performing  those  acts.  As  to  the  nature  of  the  body,  it  is  "the  high- 
est judicature  of  the  Presbyterian  Church." 

What  is  a  church?  That  is,  what  is  a  Christian  church,  accord- 
ing to  the  definition  of  the  Presbyterian  Church  itself,  for  that  is 
our  guide  in  this  controversy.  It  is  a  community  of  professing 
christians  associated  for  the  express  purpose  of  maintaining  doc- 
trine, discipline,  and  government,  according  to  the  apostolic  stand- 
ard. Every  church  professes  to  be  framed  after  the  pattern  of  the 
first  Christian  church.  I  know  there  is  a  cry  by  some  against  doc- 
trine, that  it  is  all  bigotry,  &c.  But  this  church  esteem  it  neces- 
sary. »So  in  regard  to  discipline,  there  is  an  t)utcry  against  it,  as 
tyranny:  but  discipline  is,  at  any  rate,  essential  to  a  Presliytcrian 
Church,  according  to  their  book.  And  this  discipline  is,  by  their 
constitution,  to  be  administered  by  ordained  men.  I  do  not  say  that 
this  is  the  best  system  in  the  world.  I  think  it  is  good,  and  at  any 
rate  it  is  Presbyterian.  I  need  not  vindicate  the  General  Assembly 
for  having  excluded  the  four  synods.     They  had  a  right  to  do  so, 


603 

and  they  have  done  it  in  order  to  preserve  sound  doctrine  in  the 
church.  Discipline  and  ijjovernment  are  absolutely  necessary  to 
the  church,  although  1  know  that  there  are  sonne  men  who  do  not 
regard  them  in  that  light,  who  think  nothing  of  discipline  and  go- 
vernment. 

According  to  their  constitution,  (see  Form  of  Government,  Chap- 
ter 2,  Section  4,)  a  church  is  a  body  "  voluntarialy  associated 
togeiher,  for  divine  worship  and  godly  living,  agreeably  to  the 
holy  scriptures;  and  sxihmitt'nig  to  a  certain  form  </f  government :" 
that  is,  so  organized  to  conduct  their  moral  disciphne,  wholly  un- 
touched by  the  civil  power.  Now,  our  state  constitution  expressly 
provides  for  this;  (I  refer  particularly  to  the  "Bill  of  Rights,") 
where  it  says  that  there  shall  be  no  interference  "  with  the  rights  of 
conscience."  I  can  see  nothing,  then,  in  which  (he  Presbyterian 
Church  brings  itself  into  any  relation  to  the  civil  power,  except  in 
its  beautiful  assimilation  to  it  in  the  republican  features  of  its  go- 
vernment. 

In  relation  to  these  acts  of  1837,  it  is  sufficient  then  for  our  pur- 
pose, abundantly  sufficient,  to  preclude  any  right  or  power  of  inter- 
ference, revision,  or  rejudgment  by  this,  or  any  other  court  in  this 
land,  that  t/iey  uere  done  by  a  majority,  and  done  according  to  con- 
science. That  it  was  so  done,  the  lecord  that  it  was  done  is  suffi- 
cient evidence  for  us,  till  it  is  disproved;  and  being  so  done,  it  can 
not  be  touched  by  any  earthly  power. 

It  was,  then,  the  exercise  of  their  judgment,  expressed  by  a  ma- 
jority of  voices.  They  had  a  right.  Who  will  attempt  to  interfere 
wiih  their  right  to  regulate  their  own  affiiirs,  whether  in  regard  to 
discipline  or  doctrine? 

Now  look  at  the  preliminary  principles,  which  lie  at  the  founda- 
tion of  the  whole  structure  of  this  Presbyterian  Church,  as  they  are 
spread  out  on  pages  343-345,  being  Chapter  1.,  of  the  Form  of 
Government : — 

"They  are  unanimously  of  opinion: 

"  1.  That  'God  alone  is  Lord  of  the  conscience;  and  hath  left  it 
free  from  the  doctrine  and  commandments  of  men,  which  are  in 
any  thing  contrary  to  his  word,  or  beside  it  in  matters  of  faith  or 
worship:'  therefore  they  consider  the  rights  of  private  judgment, 
in  all  matters  that  respect  religion,  as  universal  and  unalienable: 
ihev  do  not  even  wish  to  see  any  religious  constitution  aided  by  the 
civil  power,  furtlier  than  may  be  necessary  for  protection  and  secu- 
rity, and,  at  the  same  time,  be  equal  and  common  to  all  others. 

"2.  That,  in  perfect  consistency  with  the  above  principle  of 
common  right,  every  Christian  church,  or  union,  or  association  of 
particular  churches,  is  entitled  to  declare  the  terms  of  admission 
into  its  communion,  and  the  qualifications  of  its  ministers  and  mem- 
bers, as  well  as  the  whole  system  of  its  internal  government  which 
Christ  hath  appointed:  that,  in  the  exercise  of  this  right,  they  may, 
notwithstanding,  err,  in  making  the  terms  of  communion  either  too 
lax  or  too  narrow;  yet,  even  in  this  case,  they  do  not  infringe  upon 
the  liberty,  or  the  rights  of  others,  but  only  make  an  improper  use 
of  their  own. 


604 

"3.  That  our  blessed  Saviour,  for  the  edification  of  the  visible 
Church,  which  is  his  bodv%  hnth  appointed  officers,  not  only  to 
preach  the  Gospel  and  administer  the  sacraments ;  but  also  to  ex- 
ercise discipline,  for  the  preservation  both  of  truth  and  duty;  and, 
that  it  is  incumbent  upon  these  officers,  and  upon  the  whole  church, 
in  whose  name  they  act,  to  censure  or  cast  out  the  erroneous  and 
scandalous;  observing,  in  all  cases,  the  rules  contained  in  the  word 
of  God. 

"4.  Th:it  truth  is  in  order  to  goodness;  and  the  great  touchstone 
of  truth,  its  tendency  to  promote  holiness;  according  to  our  Saviour's 
rule,  '  bytheir  fruits  ye  shall  know  them.'  And  that  no  opinion 
can  be  either  more  pernicious  or  more  absurd,  than  that  which 
brings  truth  and  falsehood  upon  a  level,  and  represents  it  as  of  no 
consequence  what  a  man's  opinions  are.  On  the  contrary,  they  are 
j'ersuaded  that  there  is  an  inseparable  connexion  between  faith  and 
practice,  truth  and  duty.  Otherwise  it  would  be  of  no  consequence 
either  to  discover  truth,  or  to  embrace  it. 

•'5.  That  while  under  the  conviction  of  the  above  principle,  they 
think  it  necessary  to  make  effectual  provision,  that  all  who  are  ad- 
mitted as  teachers  be  sound  in  the  faith  ;  they  also  believe  that  there 
are  truths  and  forms  with  respect  to  which  men  of  good  characters 
and  principles  may  differ.  And  in  all  these  they  think  it  the  duty, 
both  of  private  Christians  and  societies,  to  exercise  mutual  forbear- 
ance towards  each  other. 

"6.  That  though  the  character,  qualifications,  and  authority  of 
church  ofiicers,  are  laid  down  in  the  lioly  Scriptures,  as  well  as  the 
proper  method  of  their  investiture  and  institntir.n  ;  yet  the  election 
of  the  persons  to  the  exercise  of  this  author!  \,  in  any  particular 
society,  is  in  that  society. 

"7.' That  all  church  power,  whether  exercised  by  the  body  in 
general,  or  in  the  way  of  representation  by  delegated  authority,  is 
only  ministerial  and  declarative;  That  is  to  say,  that  the  Holy 
Scriptures  are  the  only  rule  of  faith  and  manners;  that  no  church 
judicatory  ought  to  pretend  to  make  laws,  to  bind  ihe  conscience 
in  virtue  of  their  own  authority;  and  that  all  their  decisions  should 
he  founded  upon  the  revealed  will  of  God.  Now  though  it  will 
easily  be  admitted,  that  all  synods  and  councils  may  err  through 
the  frailty  inseparable  from  humanity;  yet  there  is  much  greater 
dancrer  from  the  usurped  claim  of  making  laws,  than  from  the  right 
of  judging  upon  laws  already  made,  and  common  to  all  who  pro- 
fess the  Gospel;  although  this  right,  as  necessity  requires  in  the 
present  state,  be  lodged  with  fallible  men. 

"8.  Lastly.  That,  if  the  preceding  scriptural  and  rational  prin- 
ciples be  steadfastly  adhered  to,  the  vigour  and  strictness  of  its  dis- 
cipline will  contribute  to  the  glory  and  happiness  of  any  church. 
Since  ecclesiastical  discipline  must  be  purely  moral  or  spiritual 
in  its  object,  and  not  attended  with  any  civil  effects,  it  can  derive 
no  force  whatever,  but  from  its  own  justice,  the  approbation  of  an 
impartial  public,  and  the  countenance  and  blessing  of  the  great 
Head  of  the  church  universal." 


605    . 

Your  honours  will  observe  this,  ^^  Lastly,  that  ecclesinstical  dis- 
cipline must  be  purely  moral  or  spiritual  in  its  object,  and  not  at- 
tended with  any  civil  effects,"  &c.  Showing  that  the  constituiion 
of  the  Presbyterian  Church  holds,  expliciily,  that  the  civil  power 
has  no  right  to  interfere  with  its  acts.  This  is  a  part  of  their  faith, 
which  they  hold  as  of  divine  origin. 

Now,  how  is  this  government  administered.  First,  the  congre- 
gations are  governed  by  sessions.  Second  in  order  is  the  presby- 
tery, then  the  synod,  with  the  construction  of  which  bodies  you  are 
acquainted.  Then,  over  all,  and  above  all,  the  last  object  in  sight, 
the  supreme,  the  *' highest  judicatory,"  is  the  General  Assembly; 
just  as  supreme  as  this  court  is  in  relation  to  the  courts  of  Penn- 
sylvania. What  earthly  tribunal,  again  I  ask,  has  the  shadow  of  a 
pretence  of  any  right  to  inierfere  with  their  decisions?  Suppose 
the  session  of  a  congregation  exclude  a  man  from  their  communion, 
and  he  a[)peals  to  presbytery,  to  synod,  to. the  General  Assembly, 
and  all  through  his  original  condemnation  is  confirmed.  He  then 
comes  to  your  honours.  You  will  tell  him,  (and  can  tell  him  nothing 
else,)  "your  church  must  decide  that  matter,  there  is  no  appeal  be- 
yond its  highest  judicature."  But  here,  it  is  said,  are  500  ministers, 
50,000  comiDunicants,  &c.:  well,  what  is  the  difference?  The  prin- 
ciple is  the  same  with  one  as  with  thousands. 

It  might  really  be  supposed,  from  the  argument  that  was  addressed 
to  this  Court  yeslerday,  that  the  relators,  and  those  whom  they  re- 
present, were  turned  out  to  starve — to  starve  for  want  of  food  for 
the  nourishment  of  the  spirit.  They  were,  however,  turned  out 
from  the  Presbyterian  Church,  because  they  did  not  agree  with  it 
in  discipliric  and  doctrine.  But,  the  wide  world  was  before  them. 
If  they  chose  to  form  a  Congregational  church,  let  them  do  it.  If 
they  chose  to  connect  themselves  with  a  Congregational  church, 
let  them  do  it.  But  the  question  was,  shall  they  be  allowed  to  come 
into  the  judicatories  of  the  Presbyterian  Church,  and  thus  create 
disorder  and  confusion,  to  the  danger  of  sound  doctrine?  Now, 
how,  I  would  ask,  was  that  question  to  be  settled?  The  decision 
which  was  made,  excluding  the  four  synods,  was,  as  we  have  seen, 
in  consonance  with  the  principles  of  the  constitution  of  the  church, 
that  the  majority  shall  rule,  and  was  a  most  righteous  and  con- 
scientious decision. 

Let  me  now  refer  you  to  Chapter  8th  of  the  Form  of  Govern- 
nnent,  page  253  and  254,  which  1  rather  wonder  has  not  been  more 
particularly  adverted  to.  [For  this  chapter  see  page  156  of  this 
report.] 

Now,  from  this  it  is  evident  that  if  the  General  Assembly  had 
done  wrong,  there  is  no  body  to  which  an  appeal  could  be  made. 
There  is  no  other  quarter  whence  to  look  for  redress.  There  has 
been  an  outcry  raised  that  500  pastors  and  60,000  communicants 
were  now  suffering  persecution  at  the  hands  of  the  respondents  ! 
Now,  instead  of  that  being  an  argument  to  enlist  the  feelings  of  men, 
it  was  to  be  turned  the  other  way,  for  they  were  strong  enough  to 
take  care  of  themselves.  A  band,  a  phalanx  of  sixty-thousand, 
complaining  of  oppression  in  this  country  !     Oppression  by  whom? 

51* 


606 

And,  that  they  were  going  to  be  deprived  of  their  property,  ond 
that  there  was  a  want  of  charity  !  Now  this  was  not  the  fact,  they 
were  merely  desired  to  go  in  peace.  They  were  not  going  to 
lose  their  property.  It  was  perfectly  ridiculous  to  talk  of  oppres- 
sion and  persecuton  in  such  a  case  as  this.  Talk  of  violating  the 
constitution!  What  greater  violation  of  the  constitution  of  the 
Presbyterian  Church  could  have  been  committed  than  to  drag  the 
respondents  here  into  a  tribunal  foreign  to  our  institutions'?  Where 
is  the  constitution  for  this?  But  I  ask,  after  all  that  has  been  done 
and  said,  and  testified,  what  do  your  honours  know  about  the  four 
synods  which  were  excinded,  whether  they  were  regularly  consti- 
tuted or  not?  I  maintain  that  the  General  Assembly,  in  doing  as 
they  had  done,  were  perfectly  justified  by  the  constitution  of  the 
Church,  and  that,  if  they  had  not  been,itwas  a  subject  which  cannot 
be  entertained  by  this  Court. 

I  have  submitted  pretty  much  what  I  had  to  say  on  this  point; 
but  within  a  few  days,  I  have  received  the  manuscript  notes  of  Chief 
Justice  Johns,  of  Delaware,  of  the  argument,  and  a  draft  of  his 
ch  irge,  in  the  case  of  the  Rev.  Mr.  Hindman,  excluded  from  the 
New  Castle  Presbytery  in  1808,  which,  as  it  is  exactly  to  my  pur- 
pose, I  will  re:id. 

[Mr.  Sergeant  stated  that  this  presbytery  was  incorporated  by 
the  Legislature  of  Delaware,  and  he  cited  the  case  as  authority, 
fully  sustaining  the  position  which  he  had  taken  against  the  idea 
that  the  civil  courts  had  jurisdiction  in  this  country  over  the  acts 
of  ecclesiastical  bodies.  Mr.  Randall  interposed,  when  this  do(;u- 
rnent  was  ofiered,  remarking,  that  the  whole  argument  presented 
by  Mr.  Sergeant  against  the  jurisdiction  of  the  court  was  entirely 
unexpected  by  himself  and  his  colleague,  Mr.  Meredith,  as  that  ques- 
tion had  been  distinctly  decided  by  the  court,  in  relation  to  this  very 
case,  at  the  July  term,  when  it  was  specially  argued  ;  that  since  that 
time,  during  the  whole  course  of  the  trial  before  Judge  Rodgers 
and  the  jury,  and  by  the  opening  counsel  on  the  motion  for  a  new 
trial,  it  had  not  been  touched  ;  it  could  not  therefore  have  been  an- 
ticipated that  so  extraordinary  a  course  was  to  be  taken  at  this 
time,  and  especially  that  after  the  closing  counsel  against  the  mo- 
tion had  concluded,  judicial  decisions  of  this  character  and  in  this 
form  too,  the  manuscript  notes  of  a  judge  were  to  be  read  and 
submitted  to  the  Court.  If  these  papers  were  to  be  presented,  his 
colle  gue  and  himself  ought  surely  to  have  been  apprised,  before 
the  latter  concluded  the  argument  on  the  other  side,  that  this 
ground  was  to  be  taken.  In  that  case,  they  would  have  submitted 
t  le  most  ample  authorities  in  the  form  of  decisions  in  the  courts  of 
this  state.  New  Jersey,  New  York,  Maryland,  and  others,  showing 
conclusively  that  the  settled  law  of  this  country,  according  to  the 
opinion  of  the  ablest  jurists,  is  directly  contrary  to  that  contended 
for  by  Mr.  ISergeant. 

The  objection  was  waived,  on  the  Court  saying  that  Mr.  Randal! 
could  reply  to  any  new  matter  introduced  by  Mr.  Sergeant. 

Mr.  Sergeant  then  read  portions  of  the  argument  and  charge. 


607 

by  which  it  appeared  that  the  Court  in  that  case  decided  that  it  had 
no  jurisdiction.] 

With  regard  to  the  clerical  office,  the  court  had  no  power.  Now, 
the  principle  of  that  decision  applies  here.  It  was  a  suhject  the 
court  could  not  deal  with.  They  could  not  interfere  in  the  matter, 
because  it  was  a  spiritual  question,  and  the  civil  authority  has  no 
right  to  touch  the  question  of  mor;»l  discipline,  including  the  expul- 
sion of  ministers.  I  am,  then,  fully  fortified  by  that  decision  as  to 
the  principle  I  have  l)een  contending  for. 

Now,  if  there  can  be  any  doubt,  as  I  trust  there  will  not  be,  as  to 
this  principle  goin^  the  whole  length  of  my  positions,  still  it  ought 
not  to  be  denied  that  respect  is  due  to  the  decisions  of  the  judicatory 
of  the  church  ;  that  they  ought  to  be  deemed  to  be  good  until  the 
contrary  appears,  and  that  the  burden  of  proof  that  they  are  not, 
must  lay  with  the  opposite  side.  The  whole  matter,  however,  has 
been  reversed  in  this  case,  for  the  burden  of  proof  has  been  thrown 
upon  the  respondents.  It  will  be  recollected  that  his  honour.  Judge 
Rodgers,  told  the  jury  that  Dr.  Elliott  was  right  in  his  decision  as 
to  the  appeal  of  Dr.  Patton,  for  the  reason  that  the  roll  had  not  yet 
been  reported,  and  that  the  body  was  not  so  constituted  as  to  be  able 
to  entertain  the  appeal.  But,  then,  his  honour  left  it  to  the  jury  in  this 
way :  "  The  decision  of  the  moderator  was  correct,  if  it  was  the 
true  reason." 

The  moderator  decided  right,  and  the  jury  were  called  upon  to 
decide  whether  the  reason  he  gave  for  it  was  the  reason  upon  which 
he  acted.  I  do  not  spenk  of  this  as  being  an  error  in  the  charge, 
or  a  distinct  and  substantive  ground  of  objection  to  the  verdict,  but 
as  an  uncalled  for  insinuation.  Dr.  Elliott,  a  reverend  character, 
had  been  examined  under  oath,  and  an  opportunity  was  afforded 
the  other  side  of  obtaining  the  information  they  desired,  and  yet  the 
jury  were  called  upon  to  look  into  his  liearU  and  to  say  whether  he 
was  governed  by  the  reason  which  he  assigned  !  If  the  principle  is 
to  be  admitted  that  such  investigations  are  to  be  held  in  civil  courts, 
and  extended  to  every  denomination,  who,  I  ask,  will  consent  to  be 
moderator,  if  his  clerical  character  only  is  not  sufficient  to  protect 
him  against  those  suspicions,  from  which  every  other  presiding  of- 
ficer is,  by  rule,  protected?  That  rule  is,  that  his  motives  are  not 
to  be  questioned.  I  protest  against  conduct  of  this  sort,  as  beinor 
calculated  to  lead  to  persecution  of  the  most  cruel  kind — persecu- 
tion, in  comparison  with  which  that  which  had  been  experienced 
by  the  500  ministers  and  50,000  communicants  was  light  as  the 
dust  of  the  biilance.  For  what  greater  torture  could  any  man  en- 
dure than  by  the  process  of  such  an  investigation  as  that  to  which 
they  subjected  Dr.  Elliott  before  the  jury?  Especially  when  that 
was  followed  up  by  one  of  the  counsel  on  the  other  side,  in  this 
Court,  publicly  suggesting  to  that  reverend  gentleman  a  text,  incul- 
cating truth  and  honesty,  on  which  to  preach,  therebv  plainly  in- 
timating that  he  ought  to  obey  those  precepts,  or  in  other  words, 
declaring  that  he  had  violated  them!  The  same  spirit  has  charac- 
terized the  New  School  party  throughout  these  proceedings.  Indeed, 
what  must  be  the  character  of  the  case,  when  counsel,  so  correct 


608 

as  both  those  gentlemen  are,  could  use  such  rancorous  and  bitter 
language  as  they  had  in  this  case,  in  relation  to  venerable  clergy- 
men ! 

[The  opposite  counsel  here  both  interposed.  Mr.  Meredith  said 
that  he  was  not  aware  that  there  was  any  just  foundation  for  the 
course  of  remark  which  the  learned  counsel  was  pursuing;  that  he 
was  a  little  apprehensive  that  the  gentleman  was  applying  his  re- 
buke on  the  wrong  side;  and  that  so  far  as  the  suggestion  of  a 
text  was  concerned,  it  was  not  made  for  Dr.  Elliott,  but  for  his  suc- 
cessor, (who  he  might  be  he  knew  not,)  and  certainly  the  sugges- 
tion had  no  such  personal  application  as  the  gentleman  had  laboured 
to  give  it,  but  was  in  view  of  the  general  aspects  of  the  case,  an 
expression  of  his  own  desire,  that  hereafter  things  "  lovely,  peace- 
ful, and  of  good  report,"  might  [prevail  in  the  Old  School  portion  of 
the  church.  Indeed,  the  remarks  of  his,  to  which  the  counsel 
alluded,  were  all  thrown  out  in  a  playful  mood,  as  the  only  reply 
"which  he  thought  it  desirable  to  make,  in  a  case  of  this  character, 
lo  the  rancorous  and  bitter  denunciations  which  had  been  so  freely 
yttered  on  the  other  side.  He  would  cheerfully  subrriit  it  to  the 
cool  reflection  of  the  gentlemen  themselves,  which  was  the  better 
course. 

Mr.  Randall  said,  that  the  imputations  of  Mr.  Sergeant  were 
certainly  groundless.  For  himself  he  could  appeal  to  every  mem- 
ber of  the  court  and  of  the  bar,  that  he  had  been  guilty  of  no  such, 
indecorum  as  was  charged  upon  him;  and  in  a  case,  which  had 
been  managed  as  this  had  been  on  the  other  side,  he  thought  it 
peculiarly  unfortunate  that  such  an  assnult  should  come  from  that 
quarter,  and  especially  that  the  counsel  should  not  only  thus  have 
assailed  the  relators,  and  their  friends  and  counsel,  but  that  he 
should  also  have  allowed  himself  thus  to  impugn  his  honour,  who 
presided  at  Nisi  Prius,  than  whom,  he  knew,  that  no  judge  enjoyed 
more  entirely  the  confidence  of  this  whole  Court.  Indeed,  who  has 
been  spared,  in  this  painful  trial;  who  that  happens  to  differ  from 
the  party  of  the  respondents  has  been  exempted  from  vituperation. 
Neither  the  responsibilities  of  the  counsel  for  the  relators,  nor  the 
outraged  feelings  of  their  clients — neither  the  sacred  station  of  the 
jury  nor  the  ermine  of  the  judge,  have  been  a  shield  against  the  im- 
putations which  have  been  lavished  here  at  the  forum;  nor  the 
calumnies,  which,  since  the  trial  below,  have  been  poured  forth  from 
the  press,  and,  I  am  sorry  to  say  it,  even  from  the  pulpit  of  the  op- 
posite party,  with  an  indiscretion,  however,  which  I  am  happy  in 
being  assured  is  exceedingly  regretted  by  the  more  wise  and 
venerable  men  of  that  party. 

His  honour,  Judge  Rodgers,  remarked,  that  he  did  not  know  that 
the  interruption  of  the  counsel  here  was  more  called  for  than  in 
several  other  instances  ;  but  most  true  it  was,  that  no  one  had  lieen 
spared,  who  had  sustained  any  relation  to  this  case,  and  who  had 
been  so  unfortunate  as  to  coincide  in  judgment  with  the  court  and 
the  jury  in  the  result  of  the  trial  below.  It  was  certainly,  in  this 
particular,  the  most  singular  case  he  had  ever  known. 

Mr.  Sergeant  said,   that  he  did  not  seriously  intend  such  imputa- 


609 

tions  on  others  as  seemed  to  be  attributed  to  him,  and  perhaps  in 
the  warmth  of  his  zeal  in  a  good  cause,  he  had  used  some  expres- 
sions which  would  bear  an  interpretation  which  he  did  not  design. 
But  certain  it  is  that  a  spirit  has  mingled  in  this  controversy  cal- 
culated to  destroy  any  church,  and  which,  if  unrestrained,  would 
destroy  all  the  churches  in  the  land.] 

Mr.  S.  then  proceeded  in  his  argument — 

Now,  in  relation  to  the  position  that  the  General  Assembly  is 
quasi  corporate,  that  is,  an  imperfect  corporation,  I  hold  that  it  is 
not  corporate  at  all ;  but  that  the  trustees  are  fully  and  only,  the 
corporation.  Re;id  the  act  of  incorporation.  [See  page  28  of  this 
report.]  It  s|)ecifies  certain  persons  in  New  York,  New  Jersey,  and 
Pennsylvania,  whom  it  incorporates  as  Trustees  of  the  General  As- 
sembly. It  is  said  that  the  Assembly  are  the  delectors  of  the  cor- 
poration, and,  therefore,  quasi  corporate;  but  this  is  not  so.  The 
act  of  the  Legislature,  under  which  the  Assembly  make  the  appoint- 
ment, speaks  of  the  General  Assembly  as  an  existing  body,  and  of 
all  its  qualities,  attributes  and  rights,  before  the  church  was  either  a 
corporation  or  a  quasi  corporation,  and  I  contend  that  it  intended 
to  leave  it  in  this  respect  as  it  found  it.  What  was  incorporated? 
Was  it  the  General  Assembly  as  it  then  was?  Then  the  Plan  of 
Union  was  clearly  inadmissible.  But,  not  to  insist  on  this;  the  act 
certainly  intended  to  leave  the  Assembly  as  it  then  was.  Suppose 
the  Assembly,  before  the  act  of  incorporation,  had  dissolved  or 
excinded  synods  and  presbyteries.  Would  the  civil  court  inter- 
fere ?  By  no  means.  Well,  then,  was  the  Assembly  abridged  in 
its  powers  by  the  incorporation?  No.  The  legislature  left  it  as 
it  was,  with  its  bill  of  rio;hts  maintaining  a  separation  from  the 
civil  power,  an  exemption  from  the  interference  or  revision  of  the 
civil  courts.     It  left  it  separate  from  the  corporation. 

Now,  with  regard  to  the  trustees  that  were  elected  in  1837,  after 
the  excinding  resolutions  were  passed,  and  after  the  four  synods 
had  ceased  to  be  members  of  the  General  Assembly.  Did  ever 
any  body  question  the  validity  of  the  election  of  trustees  of  1837? 
Has  any  body  ever  pretended  that  that  election  was  illegal?  Has 
any  one  ever  attempted  to  have  those  trustees  removed?  Yet  if 
the  principle  were  true  which  is  contended  for  here,  we  should 
have  a  right  to  look  into  the  validity  of  their  election  ;  for  it  hap- 
pened at  a  time  when  the  delegates  from  these  synods  were  excluded 
from  voting.  No  body,  ever  so  much  embittered  in  their  feelincs 
against  that  Assembly,  ever  thought  of  calling  on  this  Court  and  tell- 
ingit  that  that  resolution  was  unconstitutional,  in  order  to  invalidate 
the  election  of  1837,  on  the  ground  that  some  of  the  electors  had 
been  excluded  from  the  election.  But  that  was  not  the  inquiry. 
The  inquiry  was — where  was  ihe  General  Assembly?  Did  the 
General  Assembly  choose  those  trustees?  The  existence  of  the 
body  known  as  the  General  Assembly  attested  that  these  are  the 
gentlemen  appointed  as  trustees. 

Well,  trustees,  whether  incorporated  or  unincorporated,  could  be 
comf)elled,  by  a  court  of  equity,  to  fulfil  the  duties  of  their  trust. 
So  that,  on  the  subject  of  the  funds  of  the  General  Assembly,  there 


610 

is  no  need  of  this  process  of  quo  warranto.  If  those  funds  were 
contributed  for  specific  purposes,  a  court  of  equity  could  conripel 
their  being  so  appropriated:  if  for  jrenerni  charities,  under  the  di- 
rection of  the  Assembly,  the  Assembly  of  1837  was  as  competent  as 
any  other,  to  dispose  of  them. 

I  need  not,  however,  dwell  on  this,  as  it  has  been,  I  think,  fully- 
shown,  that  it  is  not  competent  to  this  ('ourt  to  inquire  into  the  con- 
stitutionality or  justice  even,  of  the  acts  of  1837,  those  acts  having 
been  adopted  by  a  majority,  and  the  l)ody  adopting  them  being  one 
of  spiritual,  and  not  of  civil  jurisdi(;tion. 

On  this  subject,  your  honours  will  recollect  thnt  objection  was 
made  on  the  trial,  to  the  admission  of  the  proceedings  of  1837,  and 
so  I  suppose  that  objection  is  available  to  us  here. 

[^Judge  Rodgpvs  said  no  such  objection  was  made  on  the  trial,  on 
the  ground  which  is  now  taken,  nor  was  this  ])oint  ever  made  in  the 
prosrress  of  the  trial,  that  the  court  had  no  jurisdiction.] 

Well,  then,  I  was  going  to  say,  that  in  a  case  before  Judge  Wash- 
ington, a  point  not  presented  below,  was  argued  in  the  upper  court, 
and  so  entirely  to  the  satisfaction  of  that  judge,  that  he  fully  con- 
curred in  the  opinion  of  the  court,  reversing  that  which  he  had  him- 
self given  below. 

But  not  to  rely  on  this,  I  will  examine  the  acts  of  1"37,  if  exa- 
minable by  this  Court,  or,  as  //"they  were  so  examinable. 

Well,  how  shall  it  be  done?  I  say  that  those  acts  are  good  and 
valid,  and  so  to  be  received,  till  the  reverse  is  proved.  But  how 
shall  it  be  either  proved,  or  disproved?  I  am  not  competent  to 
examine  these  spiritual  acts,  and  this  tribunal  is  not  a  spiriiual  tri- 
bunal. This  difficulty  meets  us  at  every  turn.  But  we  must  go  to 
the  constitution  of  the  church.  That  constitution  declares  that  it 
is  a  church  on  principles  not  admitting  the  contiol  of  the  civil 
power,  and  all  its  members  have  volimtarily  adopted  it  with  that 
principle  on  its  face.  The  articles  of  the  constitution,  and  the  acts 
of  the  Assembly  which  have  been  read,  also  show  you  that  that  body 
had  power  to  excind,  expel  or  dissolve,  &c.  It  had  all  the  power 
of  the  church,  and  of  all  the  judicatories  of  the  church,  not  only  as 
to  the  thing  to  be  done,  but  also  as  to  the  manner  of  doing  it.  There 
is  no  limitation  of  its  powers.  And  the  court  will  therefore  see  a 
difficulty  in  prc»nouncing  its  acts  unconstitutional. 

Well  now  the  act  which  they  have  done  is  to  lay  dovn  four 
synods.  This  act  is  objected  to.  Well  suppose  the  ol)jeciion  to 
prevail.  Who  will  tell  them  rrhen  they  may  lay  down  a  synod  or 
do  any  other  act  to  remove  disorders  from  among  them?  .Tudge 
Rodgers' decision  in  regard  to  receiving  evidence  of  irregularities, 
&c.,  in  these  synods  was  correct,  on  the  ground  that  the  Court 
could  not  inquire  into  them.  But  is  not  the  same  ground  good 
against  our  inquiring  into  the  character  of  the  excinding  acts? 
At  any  rate,  I  contend  that  if  we  are  to  examine  here  the  consti- 
tutionality of  the  excinding  acts,  we  must  give  them  the  benefit  of 
the  rules  of  law  in  such  cases,  viz:  that  those  who  complain  of  the 
I  nconstitutionality  of  any  acts,  must  show  the  specific  provision  in 
the  constitution  which  is  violated.     Have  the  other  side  done  this? 


611 

No.  But  we  have  shown  the  clause  in  the  constitution  giving  the 
power,  and  we  have  shown  the  practice  iti  conlbrmily  to  iljat  clause, 
and  the  uniform  acquiescence  ol  the  church  in  such  practice. 

Well,  if  we  must  <2;o  into  it,  feehle  as  my  powers  are  for  such 
purposes,  yet  if  ihis  investigation  is  admissible,  1  will  go  in  to  it. 

Firsi,  1  will  show  that  the  separation  cuniemplated  by  the  abr(j- 
gaticjn  of  the  "Plan  of  Union"  was  necessary  tor  the  good  of  the 
church,  in  consequence  of  the  disorders  and  contentions  introduced 
by  that  pirin.  My  evidence  is  not  parole  merely,  but  more  au- 
tlieniic  documents. 

And  first,  the  adoption  of  the  resolution  introduced  by  Mr. 
Breckinridge  for  a  committee  of  separation  proves  it.  How  else 
could  such  a  resolution  have  l)een  adopted?  But  secondly,  the 
proceedings  of  that  committee  show  the  same  thing  most  clearly. 
Both  tlie  report  of  the  majority  committee,  and  that  of  the  minority, 
show  that  there  were  "important  diderences  of  doctrine,"  ditier- 
ences  of  vitjij  importance,  ditierences  to  be  deprecated,  &c.  It  is 
not  for  us,  certainly  n^t  for  me,  to  institute  a  comparison  of  the 
tenets  held  by  the  different  parties.  It  is  enough  that  there  were 
such  diflerences,  and  these  introduced  lends,  heats,  contentions, 
strifes,  &c.,  till  at  length,  in  183H,  they  produced  the  secession  of  the 
party  now  claiming  with  the  relators  in  this  Court.  On  every 
question,  the  two  parties  were  as  distinct  and  marked  as  the  waters 
of  the  Allegheny  and  Monongahela  rivers  at  Pittsburgh. 

The  root  of  all  this  ditiictlty  was,  that  aliens  were  brought  into 
the  church  by  the  Plan  of  Union  of  1801.  This  we  could  have 
proved  on  the  trial,  had  we  been  allowed,  and  are  therefore  now 
entitled  to  the  benefit  of  it,  as  if  proved.  His  honour  charged  the 
jury,  that  "  if  the  standing  committee  of  Congregational  churches 
have  claimed  and  exercised  the  same  rights  as  ruling  elders  in 
presbyteries,  and  in  the  General  Assemttly  itself,  it  is  an  abuse 
which  m;iy  be  corrected  by  the  proper  tribunals;  but  surely  that  is 
no  argument,  or  one  of  but  little  weight,  to  show  that  the  P  lanof 
Union  is  unconstitutional  and  void."  Hence,  he  concludes  that  the 
p/an  did  not  introduce  these  committees  to  the  exercise  of  these 
rights.  But  I  beg  again  to  invite  his  attention  to  this  subject.  The 
construction  depends  upon  the  last  of  these  articles.  And  if  care- 
fully examined,  "provided"  here,  does  not  mean  a  "proviso"  con- 
nected with  the  case  of  a  church  from  which  an  appeal  goes  up  to 
the  presbytery,  but  it  is  in  reality  an  independent  article,  and  "pro- 
vided," has  simply  the  force  of  "if" — if  such  a  standing  committee 
depute  one  of  their  number,  (that  is  on  any  occasion,)  he  shall  have 
the  s;ime  rights.  &c.  This  conclusion  is  the  more  evident,  because, 
that  on  the  other  construction,  the  very  case  in  which  it  provides  lor 
a  seat  in  presbytery  as  an  elder,  is  the  very  one  in  which,  by  the  con- 
stitution and  by  all  the  principles  of  this  church,  and  ol'  all  other 
bodies,  an  elder  from  any  particular  church  could  not  act  in  pres- 
bytery, that  is,  when  there  is  an  appeal  from  his  own  decision. 

Here  then  the  who  e  superstructure  falls,  for  the  construction 
which  I  have  disproved  is  the  whole  basis  of  the  argument  on  the 
other  side.     We  see  then  that  it  was  the  "plan,"  which  introduced 


612 

all  these  evils  into  the  church.  And  especially  let  me  here  say  in 
regrird  to  the  argument  Irom  acquiescence,  that  when  ihese  evils 
were  discovered,  they  surely  might  rightly  be  put  aside.  Could 
the  Assembly  hold  one  of  these  synods  or  presbyteries  against  their 
will?  Not  one  of  them.  iSurely  then,  liad  not  the  Old  Stock  a 
right  to  separate  these  heterogeneous  materials  from  themselves? 
And  ought  they  not  to  do  so? 

Have  1  not,  then,  n)ade  out  the  case  for  the  General  Assembly, 
that  they  have  kept  their  eye,  in  efiecting  this  separation,  on  the 
great  point  of  promoting  the  mterests  of  the  church  ?  For  the  safety 
of  the  vine,  the  unnatural  branches  must  be  pruned  off.  They  could 
neither  separate  voluntarily,  nor  live  together  in  peace.  The  ma- 
jority, therefore,  made  the  separation,  and  the  n)inority  consulted 
counsel.  The  I'esult  of  the  advice  which  they  obtained,  has  brought 
us  where  we  are.  The  majority  did  right,  and  have  no  reason  to 
regret  what  they  did.  All  the  occasion  lor  regret  is,  that  those  on 
the  opposite  side,  when  it  was  plain  and  obvious  to  every  man  that 
a  peaceful  separation  was  particularly  advisable,  and  indispensably 
necessary,  did  not  agree  to  it;  for,  had  they  done  that,  which  I  con- 
ceive would  have  been  the  most  commendable  course  for  the  bene- 
fit of  the  church,  neither  party  would  now  have  been  before  this 
Court.  The  utmost  that  can  be  hoped  by  the  success  of  the  relators 
is,  to  bring  both  parlies  together  again.  But  what  prospect  there  is 
of  that,  your  honours  can  judge,  from  what  has  passed,  i  will  re- 
fer to  one  or  two  little  matters,  upon  which  I  do  not  intend  to  lay 
any  very  great  stress,  merely  as  collateral  evidence  of  the  necessity 
of  a  separation.  In  the  New  School  pastoral  letter,  we  find  that  so 
high  had  grown  the  feeling  between  these  parties,  that  they  com- 
pare the  acts  of  the  Old  ISchool,  to  the  exercise  of  "papal  power." 

Another  evidence  of  the  spirit  existing  between  these  parties,  is 
the  fact  that  the  very  first  act  of  the  New  School,  when  they  were 
separated,  was  the  ousting  of  Dr.  Green,  the  patriarch  of  the 
church,  from  being  a  trustee. 

Now,  in  relation  to  the  acts  of  excision.  According  to  the  argu- 
ment of  the  other  side,  we  have  two  questions  to  consider — the  sub- 
stance and  form  of  the  proceedings  in  1837.  The  form,  in  part,  we 
have  considered,  and  I  will  now  finish  that  topic.  The  argument 
seems  to  admit,  that  if  the  form  had  been  right,  the  substance  would 
be  right.  This  admits  the  jurisdiction.  If  so,  then  that  body  was 
the  judge  of  the  form,  and  the  civil  court  has  no  right  to  interfere. 
But  now,  sir,  if  this  is  so,  that  the  form  of  proceeding  was  wrong, 
on  what  foundation  does  the  allegation  rest,  that  we  should  have 
proceeded  by  citation?  not  on  an  express  rule.  What  do  the  rules 
of  discipline  prescribe,  in  relation  to  the  General  Assembly?  Why, 
the  manner  in  which  they  shall  proceed  in  cases  of  appeal,  &c. 
But,  suppose  there  is  no  appeal?  Then,  according  to  the  decision 
in  Delaware,  the  courts  cannot  touch  it.  But,  according  to  the 
doctrine  here  advanced,  if  there  is  an  appeal  to  the  highest  tribunal 
of  the  church,  the  courts  can  set  aside  their  decision!  If  this  were 
so,  then  we  admit  that  it  is  essential,  that  when  the  General  As- 
sembly originate  process,  (if  they  have  a  right  to  do  so,)  they  should 


613  • 

pursue  the  regular  steps,  and  the  civil  courts  can  inquire  whether 
they  have  done  so. 

Well,  now,  the  first  question  to  be  examined  is,  was  it  the  inten- 
tion of  the  framers  of  the  constitution  to  apply  th(ise  rules  of  disci- 
pline to  a  case  like  this?  I  contend  that  it  was  not;  but  to  cases 
where  charges  were  brought.  These  are  not  such  cases.  We  did 
not  charge  any  individual  with  crime,  but  impute  the  evil  to  the 
Plan  of  Union,  to  the  whole  Assembly,  to  the  whole  church,  if  you 
please.  This  we  have  noticed  in  the  proceedings  adopted  by  the 
General  Asseml)ly,  in  repealing  the  Plan  of  Union. 

I  will  now  read  the  resolutions,  called  the  excinding  resolutions. 
[See  pages  .56  and  57  of  this  report.]  Now,  these  resolutions  as- 
sumed that  these  persons,  or  many  of  them,  were  innocent,  and  in- 
vited them  to  come  and  prove  what?  Why,  simply  that  they  were 
Presbyterians.  Nay,  more,  to  come,  not  to  the  General  Assembly, 
but  to  the  nearest  presbytery.  Here  is  no  penalty,  but  we  dissolve 
the  connexion  with  the  Assembly;  not  tor  crime,  but  for  the  good 
of  the  church.  Congregationalism  may  be  a  ground  of  separation, 
but  not  of  criminal  charges. 

The  course  proposed  by  Mr.  Jessup,  therefore,  which  it  is  said 
ought  to  have  been  adopted,  that  of  charges  and  citation,  was  not 
applicable  to  the  case.  But  it  is  said  they  were  charged  with  gross 
disorder  and  irregularities;  well,  the  first  is  the  ground  of  this  pro- 
ceeding, and  the  second  a  ground  of  criminal  proceeding,  which 
they  might,  but  did  not  choose  to  adopt. 

Previous  to  the  final  action,  your  honours  will  remember  that  a 
mode  of  proceeding  was  proposed  for  an  amicable  separation;  and 
when  that  failed,  the  resolutions  were  adopted  which  have  been  read ; 
and  I  must  say,  that  as  far  as  I  am  competent  to  judge,  (and  the  mat- 
ter is  submitted  to  the  better  judgment  of  your  honours,)  that  I  can- 
not yet  see,  after  all  that  I  have  heard  on  the  subject,  (and  I  have 
listened  attentively  to  every  thing  that  has  been  said,  and  to  the 
charge  delivered  by  his  honour.  Judge  Rodgers,)  any  thing  to  per- 
suade any  one  that  the  course  of  the  General  Assembly  was  not  the 
most  tender,  the  most  careful,  the  most  in  conformity  with  the  spirit 
of  other  institutions,  and  the  least  liable  to  reproach  from  any  body, 
of  any  that  could  be  adopted.  I  cannot  doubt  that  the  happiness 
and  peace  of  both  parties  did  require  that  they  should  be  put 
asunder,  at  least  for  a  time.  And  I  must  say,  that  the  other  side 
have  introduced  a  system  of  tactics  to  avoid  that  separation,  at 
which  I  marvel.  But.  again,  this  proceeding  related  te  bodies,  not 
individuals;  and  I  must  say,  again,  that  creation  involves,  in  all 
cases,  the  right  to  dissolve. 

Now,  all  these  synods  were  the  creation  of  the  General  Assem- 
bly, and  no  one  has  questioned  their  right  to  establish  them.  My 
colleague,  (Mr.  Hubbell,)  has  truly  remarked  that  the  power  of  re- 
moval necessarily  and  surely  followed  the  power  of  appointment. 
I  do  not  understand  the  argument  on  the  other  side,  to  deny  the 
power  of  the  General  Assembly. 

[Here  Mr.  Randall  explained.  He  said,  whether  the  General  As- 
sembly could  dissolve  a  presbytery,  was  a  vexed  question.     But 

52 


•  614 

one  thing  was  clear,  that  they  had  no  right  to  dissolve  a  presby- 
tery or  a  synod,  without  annexing  them  to  some  other  presbytery. 
One  reason,  perhaps,  was,  because  their  rights  had  become  vested, 
and  the  consequence  of  a  naked  dissohition,  was  the  suspension  of 
ecclesiastical  privileges.  And  the  sus[)ensiot)  of  those  privileges, 
for  one  instant,  was  unconstitutional  and  void.  It  had  been  done 
in  the  case  of  the  Third  Presbytery,  but  that  was  one  of  ihe  series 
of  measures  adopted  by  this  party,  of  which  we  complain.] 

I  lake  the  gentleman's  position  to  be,  that  the  right  to  lay  down 
a  presbytery  is  doubtful,  because  it  has  never  been  done.  But  I 
beg  to  say  that  it  has  been  done,  in  the  case  of  the  Third  Presbytery 
of  Philadelphia.  A  synod  is  a  link  in  the  chain  of  connexion,  ac- 
cording to  the  order  of  the  church;  and  whatever  is  done  by 
means  of  the  establishment  of  a  synod,  is  undone  by  the  dissolution 
of  a  synod,  and  nothing:  more.  Then,  if  any  ecclesiastical  privi- 
leo^es  flow  from  the  establishmeni  of  a  synod,  where  is  the  authority 
to  prove  that  ihe  General  Assembly  cannot  lay  down  that  synod  on 
that  accoimt?  The  argument  of  the  learned  counsel  was,  that 
when  once  you  have  created  a  synod,  you  cannot  lay  it  down  with- 
out trial,  sentence  and  condemnation.  Now  there  is  no  law  of  the 
state  requiring  a  regulation  of  that  sort,  nor  can  there  be.  Under 
the  cot)stitution  of  the  land,  no  such  law  can  be  passed,  requiring 
an  ecclesiastical  body  to  pursue  a  certain  course  in  disposing  of 
any  class  of  members  who  may  be  obnoxious  to  them. 

Again,  we  are  told  of  vested  rights.  The  only  vested  rights  in- 
volved, then,  are  spiritual  rights,  and  the  answer  is  that  given  in 
Delaware,  "  we  do  not  know  any  thing  of  these  rights  in  our  courts 
of  law."  Then,  again,  no  one  is  put  out  but  those  who,  in  the  opi- 
nion of  those  who  put  them  out,  ovght  to  go. 

Now,  sir,  we  offered  to  prove  the  existence  of  Congregational 
churches  in  those  synods.  How  far  wo  could  have  done  so,  I  do 
not  say.  It  has  been  said,  that  in  the  Western  Reserve,  there  were 
great  irregularities,  and  that  we  might  have  followed  up  the  in- 
quiries, and  shown  the  degenerating  character  of  members  of  judi- 
catories, till  we  come  down  to  Mr.  Bissell,  a  mere  layman,  "not  an 
elder,  not  even  a  committee-man,"  who  obtained  a  seat  on  the  floor 
of  the  General  Assembly.  True,  a  protest  was  entered  against  his 
admission,  and  that  protest  was  signed  by  Mr.  Gilbert,  and  others, 
now  forward  in  sustaining  the  New  JSrhool,  l)ut  who  then  joined  in 
the  protest  against  this  thing.     This  shows  the  progress  of  the  evil. 

There  were  several  evils  to  be  corrected,  growing  out  of  the 
Pliin  of  Union.  Now  it  is  the  province  of  the  church  to  decide 
whether  thev  will  have  Congregationalists  in  their  body,  or  not. 
Suppose  they  decide  they  will  not  have  two.  Will  the  civil  courts 
deny  their  right  to  judgment  in  the  premises?  The  documents 
which  have  been  read,  ;ind  the  cross-eximination  of  Mr,  Squier, 
show  the  existence  of  (Congregationalism  in  the  church.  Now  I 
claim  that  the  dissolution  of  those  synods  was  a  legitimate  conse- 
quence of  the  abrogation  of  the  Plan  of  Union.  That  plan  was  not 
a  part  of  the  constitution.  Those  who  came  in  under  it.  (admitting 
the  Assembly's  power  to  make  it,)  do  not  stand  on  the  constitution, 
but  on  the  Plan  of  Union.     That  abrogated,  they  go  out,  of  course. 


615 

Judge  Rodgers  has  said,  that  the  dissolution  of  the  Plan  of  Union, 
was  within  the  powers  of  the  General  Assembly.  Il  follows,  then, 
that  it  was  not  a  part  of  the  consiituliori  of  the  church.  Those 
who  came  in  under  the  Plan  of  Union,  cannot  have  constitutional 
rights,  tor  it  formed  no  part  of  the  constitution.  We  contend,  that 
it  was  unconstitutional.  These  four  synods  do  n(jt  derive  any  of  their 
rights  from  the  constitution,  but  from  an  ordinary  act  ot  the  As- 
sembly. The  creation  of  these  religious  associations  was  a  volun- 
tary act,  and  those  who  made  them  could  dissolve  them. 

But  I  leave  these  points  with  the  Court,  and  proceed  to  examine 
the  orij^anization  of  the  General  Assembly  of  183iS.  Here  we  are 
met  by  a  resort  to  parliamentary  law,  to  show  how  a  minority  may 
ttn'n  out  a  majority.  It  is,  it  seems  to  me,  a  perfect  game  of  "  push- 
bean."     But  i  will  examine  the  details,  and  begin  at  the  beginning. 

There  can  be  no  doubt  whatever  of  the  right  of  the  antecedent 
Assembly  to  provide  for  the  organization  of  the  next  General  Assem- 
bly up  to  a  certain  point,  and  this  is  in  accordance  with  the  practice 
of  the  senate  and  house  of  representatives  of  the  United  States,  and 
of  the  British  house  of  commons.  And  here  the  old  officers  were 
to  officiate  till  a  certain  point  should  be  reached  in  the  organiza- 
tion. All  parliamentary  law  was  in  accordance  with  the  principle, 
that  while  a  presiding  officer  was  in  the  chair,  no  other  person  can 
put  any  question.  When  he  is  absent  the  clerks  may  do  it.  But  again, 
in  these  preliminary  proceedings,  whatever  was  done,  the  house  had 
done  no  wrong.  If  any  was  done,  it  was  by  the  clerks.  But  the 
clerks  did  right.     The  resolutions  of  1837  bound  them. 

But  there  is  complaint  ihnt  they  did  not  at  least  report  these 
cornmish^ions  on  the  rejected  list.  I  put  this  on  the  same  ground 
withihe  other.  Three  classes  came;  one  with  irregular  commis- 
sions, one  with  none,  and  one  without  any  constituency.  Would 
you  require  them,  then,  to  report  those,  who,  in  fact,  according  to 
resolutions  of  1837,  had  no  commissions?  Besides,  the  moderator 
and  clerks  could  not  do  it,  for  they  were  placed  there,  not  as  servants 
of  the  body  to  be  organized,  but  of  that  of  1837,  to  officiate  till  a 
new  Assembly  is  organized,  and  they  were  bound  to  do  as  they  did, 
to  obey  that  of  1837.  By  the  constitution  the  moderator  was  to 
preside  "till  a  new  moderator  be  chosen,"  of  which,  the  obvious 
meaning  is,  till  he  can  be  chosen,  and  when  that  could  be  done  is 
shown  bv  the  standing  rules.  First,  "those  reported  are  to  take 
their  seats  and  proceed  to  business." 

These  rules  are  as  strong  as  the  constitution.  The  moderator  and 
clerks  were  put  there  to  do  these  certan  things.  The  moderator 
was  not  tf)  perform  the  ordinary  acts  of  speaker,  but  to  see  that 
nothing  be  done  till  a  committee  of  elections  be  appointed.  He 
should  tell  all  that  proposed  any  thing  else,  "you  are  out  of  order," 
as  he  told  Patton,  Mason,  Squier,  &c. 

With  regard  to  the  appeal  made  by  Dr.  Patton,  none  could  be  en- 
tertained, for  there  was  nothing  on  which  an  appeal  could  be 
founded,  unless  the  rules  were  violated,  as  the  body  was  not  then 
organized.  Every  deliberative  body  acts  on  this  principle,  to  do 
nothing  else,  till  organized,  and  permit  me  to  say  that  rules  are  im- 
portant.    No  voice  ought  to  be  heard  in  the  Assembly,  but  that  of 


616 

ihe  moderator,  or  of  the  individual  addressing  him.  If  it  were  once 
allowed  that  any  man  should  be  allowed  to  rise  and  distract  ihe  at- 
tention of  the  moderator  and  of  the  meinl)er,  who  was  in  order  in 
addressing  him,  then  there  was  an  end  of  all  order,  and  it  would 
then  be  a  question  as  to  what  was  going  on.  You  may  depend 
upon  it,  that  form  here  is  substance:  and  without  it  there  can  l)e  no 
order,  no  fair  play,  but  all  sorts  of  tricks  will  be  practised.  As  long 
as  any  one  is  in  the  chair,  members  cannot  notice  a  question  put 
from  any  other  quarter.  The  officer  and  the  chair  are  both  essen- 
tial, and  they  must  be  together.  Dr.  Elliott  was  not  |)ut  in  the 
chair  to  entertain  motions  and  appeals,  but  to  keep  order,  and  do 
certain  business,  until  the  committee  of  elections  was  appointed. 
If  the  chair  were  vacant,  the  next  officer,  the  clerk,  must  perform 
ihese  duties.  The  moderator  then  was  acting  in  strict  obedience 
to  the  laws  by  which  he  was  bound,  and  could  have  done  no  other- 
ways  than  he  did. 

If  a  I'urther  vindication  of  the  Assembly  and  of  Dr.  Elliott  will  be 
(Conducive  to  the  decision  of  this  case,  it  may  be  found  by  inquiring 
as  to  the  condition  of  the  house,  and  to  the  persons  there.  It  was  a 
mixed  assembly,  to  hear  the  sermon.  There  was,  then,  peculiar 
reason  for  Dr.  Elliott  to  adhere  strictly  to  the  rules.  But  Dr.  Patton 
undertook  to  judge  what  was  proper  to  be  done,  and  so  did  Dr.  Ma- 
son, when  he  chose  to  put;  aside  the  committee  of  elections. 

According  to  the  testimony  of  the  most  prominent  actors  on  the 
occasion  in  question,  the  moderator  acted  fairly,  impartially,  and 
■with  the  most  rigid  regard  to  the  rules  of  the  body.  It  has  been 
said,  that  disorder  was  committed  by  thosf  who  supported  the  mo- 
derator, as  well  as  by  that  gentleman  hin;:-tll".  Now,  I  do  not  be- 
lieve that  Dr.  Elliott  acted  in  a  disorderly  manner;  and  I  think  that 
of  those  who  committed  disorder,  there  were,  at  least,  three  to  one 
on  the  other  side. 

Now,  suppose  that  Dr.  Elliott  was  disorderly,  Patton's  and  Ma- 
son's disorder  would  balance  Elliott's;  but  if  Dr.  Elliott  was  right, 
then  all  the  disorder  was  on  the  other  side. 

Now,  till  this  time,  all  addressed  the  moderator.  When  did  he 
cease  to  be  so  regarded?  Never.  But  the  fact  is,  a  part  came  to 
do  a  certain  thing,  to  effect  a  new  organization,  and  must  lake 
therefore  that  "time  and  place."  What  next?  Why,  Mr.  Cleave- 
land  made  a  writien  speech,  and  which  had  been  since  unfortu- 
nately lost,  and  we  were  obliged  to  take  what  was  called  the  sub- 
stance of  it.  This  important  pivot  to  the  whole  case  was  lost! 
Mr.  Cleaveland's  speech  was  written  before  he  came  in,  before  Dr. 
Elliott  had  done  wrong,  if  he  did  wrong  at  a'l,  and  he  made  a  mo- 
tion, which,  according  to  the  positions  here  taken,  obliged  the  mem- 
))ers  to  look  both  ways  at  once,  under  penalty  of  being  construed  to 
acquiesce  in  what  any  body  might  propose. 

Now,  see  what  they  give  us,  separating  the  introduction  of  the 
minute  from  the  speech  of  Mr.  Cleaveland.  The  remarks  about 
the  moderator's  refusing  to  do  his  duty,  &c.,  do  not  appear  to  be 
any  part  of  Mr.  Cleaveland's  speech,  but  this  is  that  speech,  as  they 
have  presented  it:  "That  as  the  commissioners  to  the  General  As- 


617 

sembly  for  1838,  from  a  large  number  of  presbyteries,  had  been 
refused  their  scats;  and  as  we  had  been  advised  by  counsel 
learned  in  the  law,  that  a  constitutional  organization  of  the  Assem- 
bly must  be  secured  at  this  time  and  in  this  place,  he  trusted  it 
would  not  be  considered  as  an  act  of  discourtesy,  but  merely  as  a 
matter  of  necessity,  if  we  now  proceed  to  organize  the  General 
Assembly  for  1838,  in  the  fewest  words,  the  shortest  time,  and  with 
the  least  interruption  practicable."  In  the  paper  read  by  Mr.  Cleave- 
land  then,  no  intimation  was  thrown  out,  of  a  wish  tochange  the  mo- 
derator, or  to  impeach  him.  What  he  meant  to  have  done  was  to  leave 
Dr.  Elliott  in  the  chair,  and  to  have  another  moderator  in  the  aisle, 
«pon  whom  the  members  were  to  look  as  their  head.  This  was  all 
arranged  at  a  meeting  of  the  party  held  previously.  Every  mo- 
tion made  must  be  addressed  to  the  chair,  and  repeated  by  it;  and 
until  that  was  done  no  one  was  bound  to  know  any  thing  about  it. 
If  that  course  was  not  adopted,  the  motion  was  not  a  lawful  one. 
That  the  party  did  not  come  there  to  remove  Dr.  Elliott,  is  evident 
to  me,  but  they  wanted  to  have  an  organization  of  their  own,  and 
then  to  bring  up  the  question  afterwards,  as  to  which  was  the  true 
Assembly.     They  were  most  unquestionably  prepared  beforehand. 

This  is  shown  by  the  testimony  of  Dr.  Hill,  who  speaks  of  the 
"incipient  steps,"  &c.  Dr.  Patton's  "motion  was  made  to  the 
house,"  &c.,  and  Mr.  Gilbert  says,  "he  did  not  address  the  mode- 
rator," and  he  thought  it  "no  matter  in  what  -part  of  the  house"  &c. 
At  this  time  they  had  no  idea  that  those  who  remained  silent  and 
did  not  vote  on  the  motion  of  Mr.  Cleaveland,  would  be  regarded  as 
giving  their  assent.  They  knew  that  the  members  who  did  not  vote, 
were  not  bound  to  do  so,  nor  to  recognize  any  other  authority  than 
that  of  Dr.  Elliott,  the  moderator.  This  is  further  evident  from  the 
very  course  which  they  pursued,  electing  Dr.  Beman.  (I  suppose, 
because  he  had  been  moderator  before.) 

Now,  this  whole  proceeding  uas  outrageously  disorderly  from 
beginning  to  end.  1st.  It  was  out  of  season.  5id.  It  was  not  ad- 
dressed to  the  chair.  The  rules  require  the  chair  to  be  addressed. 
Another  rule  requires  the  motion  to  be  seconded,  and  repeated  by  the 
moderator.  Here  observe,  the  rules  are  of  infinite  consequence  to 
prevent  a  "  snap  judgment,"  in  this  case. 

Now,  because  we  did  not  vote  on  this  very  disorderly  motion,  we 
are  to  be  construed  as  concurring  in  it!  But  I  go  further,  and  I 
intend  to  disprove  this  intendment  of  law  as  an  intendment  of  law, 
as  well  as,  as  a  matter  of  fact.  It  was  put  by  no  officer  of  the  body, 
and  then  they  went  out  of  the  seats  which  they  occupied  as  mem- 
bers of  the  house.  No  one,  then,  was  bound  to  notice  it.  But  the 
fact  was,  that  the  minority  came  and  asked  us  to  let  them  organize 
behind  us,  (in  order  to  have  a  body  of  their  own,  ready  for  a  law- 
suit,) and  we  gave  them  consent.  "Oh,  yes,"  we  said,  "you  may- 
have  Dr.  Beman  for  your  moderator,  if  you  wish,  and  we  will  keep 
our  own." 

But  again,  look  at  the  circumstances  in  which  the  question 
was  put;  a  perfect  scene  of  disorder.  But  the  disorder  is  imputed 
to  the  Old  School.     Their   cries   of  "order"  are  called   disor- 

53* 


618 

derly  !  I  say  they  had  a  right  (if  Mr.  Cleaveland  was  disorderly) 
to  make  as  much  noise  as  they  pleased  to  suppress  the  disorder. 
Now  what  could  they  do  to  maintain  order,  other  than  they  did? 

Again,  the  question  was  not  even  put  from  the  neighbourhood  of 
the  chair.  Who  could  tell  who  had  a  right  to  vote  or  who  did 
vote?  Look  at  the  situation  of  the  parties.  The  question  was  not 
put  to  the  great  body  entitled  to  vote,  but  to  their  backs.  Then,  it 
was  not  intdligentbj  put.  Sixteen  of  the  witnesses  tell  you  that 
they  did  not  know  who  was  elected  moderator  till  some  time  after- 
ward, or  till  the  next  day.  The  precedents  read  by  the  opposite 
counsel  were  correct,  but  not  applicable,  because  these  were  disor- 
derly movements. 

Again,  parliamentary  rules  require  a  pause  to  give  opportunity 
for  debate.  But  in  this  proceeding,  where  was  the  opportunity  to 
debate?  Crack,  crack,  crack,  went  their  votes,  and  then  they  pro- 
claimed at  the  doors,  that  they  had  gone  "to  old  buttonwood." 
Now  here  is  the  clue  to  the  whole  matter.  They  intended  that  two 
bodies  should  be  organized.  Well,  one  is  organized,  and  the  other 
comes  in  and  wants  to  organize  in  their  own  way.  Well,  but  if  they 
want  to  involve  us,  they  must  use  our  lavguage,  and  must  address 
our  moderator.  The  fair  way  would  have  been  to  have  told  us 
just  what  they  wanted,  and  then  we  should  have  known  what  to  do. 

But,  again :  suppose  the  disorder  was  "  by  the  Old  School."  Well, 
the  Old  School  is  not  an  individual  nor  a  corporation.  How,  then, 
could  the  whole  be  made  answerable  for  the  disorders  of  a  part? 
How  is  it  that  every  right  is  made  to  yield  to  a  wrong  construction 
of  a  rule  ?  Why,  by  making  it  a  question  of  privilege !  It  was  not 
so  intended  at  the  time;  but  if  so,  that  body  nevec  agreed  to  re- 
ceive it,  which  is  the  first  step  in  such  a  question.  Again,  it  was 
not  put  by  our  moderator,  which  would  also  be  essential  if  it  were 
a  question  of  privilege,  or  by  the  clerk,  if  the  moderator  was  dis- 
qualified. 

The  case  of  Hollis,  cited  to  the  contrary,  is  no  precedent.  The 
authority  of  Hatzell  is  conclusive  that  the  clerk  should  put  the 
question  in  such  cases.  Such  also  was  the  practice  of  the  General 
Assembly  in  1835.  In  this  case  Mr.  Meredith  sees  Dr.  Ely,  as  a 
member  and  not  as  clerk,  but  the  antecedent  of  "him,"  in  that  mi- 
nute is  "  stated  clerk,"  so  that  I  think  there  can  be  no  question  on 
that  subject. 

I  have  now  endeavoured  to  discharge  my  duties  in  this  case. 
With  great  personal  respect  for  members  of  the  New  School  party, 
which  made  me  extremely  reluctant  to  engage,  even  professionally, 
in  a  contest  between  them  and  their  brethren  of  the  other  party,  I 
nnust  yet,  as  a  lawyer,  be  permitted  to  say,  that  I  do  most  firmly 
believe  them  in  the  wrong,  in  this  case. 

Mr.  Sergeant  concluded  late  on  Friday,  P.  M.,  and  the  Court  im- 
mediately adjourned. 


619 

Saturday,  April  26. 

At  the  opening  of  the  Court,  Chief  Justice  Gibson  remarked  to 
Mr.  Randall,  that  he  would  now  be  heard,  and  would  confine  him- 
self to  the  new  matter  introduced  by  Mr.  Sergeant,  the  closing 
counsel  on  the  other  side,  as  the  case  had  already  occupied  too 
much  time.  Mr.  Randall  then  said:  In  relation  to  time,  your  hon- 
ours will  remember  that  full  iwo-lhirds  of  the  whole  time  of  the 
Court  devoted  to  this  cause  has  beem  occupied  by  the  opposite  par- 
ly, and  that  in  the  hearing  on  the  present  motion,  my  colleague  and 
myself  have  consumed  considerably  less  than  half  as  much  as  the 
counsel  on  the  other  side.  In  regard  to  confining  myself  to  the 
new  matter  introduced  by  Mr.  Sergeant,  I  would  be  willing  to  be 
restricted  to  much  narrower  limits  than  that;  I  will  not  reply  to  all 
the  new  matter  introduced  by  that  gentleman,  for  that  would  be  to 
reply  to  nearly  the  whole  of  his  argument.  I  would  like,  however, 
to  set  Mr.  Sergeant  right  in  relation  to  two  matters  of  fact.  One  is, 
in  relation  to  the  proceedings  in  the  Assembly  of  1835,  removing 
the  temporary  incumbent  of  the  chair,  and  placing  Dr.  Wm.  A. 
M'Dowell  in  his  stead.  Mr.  Ser^^eant  has  alleged  that  the  ques- 
tion, in  that  case,  was  put  by  Dr.  Ely  as  stated  clerk,  showing  that 
the  Assembly  recognised  the  validity,  in  its  transactions,  of  the  par- 
liamentary rule  which  requires  the  clerk  of  the  house  to  put  any 
question,  which,  the  moderator  or  speaker  may  not  or  can  not  put. 
The  fact  is,  that  Dr.  Ely  could  not  have  put  that  question  as  clerk 
of  the  house,  for  the  stated  clerk  of  the  General  Assembly  is  not 
properly  an  officer  of  the  house  during  its  sessions  ;  the  duties  of  the 
clerkships  of  the  house  being  performed  by  the  permanent  and  tem- 
porary clerks.  The  business  of  the  stated  clerk  is  to  record  the 
transactionsof  the  Assembly  as  they  are  delivered  to  him  by  the  per- 
manent clerk  after  the  close  of  the  session  of  the  body,  to  prepare  the 
statistical  tables,  procure  the  publication  of  the  minutes,  and  per- 
form other  duties  after  the  dissolution  of  the  Assembly.  The  min- 
utes of  the  Assembly,  in  that  case,  which  were  in  evidence  on  the 
trial  by  jury,  moreover,  say,  not  that  the  stated  clerk,  but  that  Dr. 
Ely  put  the  motion  to  the  house.  Dr.  Ely  being  a  member. 

The  other  matter  on  which  I  wish  to  set  Mr.  Sergeant  right,  has 
relation  to  the  map  of  New  York,  which  I  submitted,  and  on  which 
Mr.  Sergeant  remarked  that  the  location  of  the  excinded  churches 
&c.  was  not  distinctly  delineated.  On  this  subject  I  have  to  say, 
that  the  map  of  New  York  which  I  submitted  to  the  Court,  exhibits 
the  territory  formerly  embraced  by  the  single  Presbytery  of  Albany. 
On  this  territory,  by  the  regular  and  constitutional  divisions  of  that 
presbytery  and  sub-divisions  of  the  several  presbyteries  erected  out 
of  it,  a  large  nuinber  of  presbyteries  now  exist,  which,  by  the  seve- 
ral regular  and  constitutional  divisions  and  sub-divisions  of  the 
Synod  of  Albany,  have  been,  by  the  General  Assembly  itself,  erected 
into  the  Synods  of  Utica,  Geneva,  and  Genessee,  whose  boundaries 
are  defined  on  the  map,  embracing  a  part  of  the  original  territory 
of  the  presbytery  of  Albany,  and  of  that  territory  only.  And  further, 
on  this  map  are  shown  the  name  and  locality  of  a  number  of  the 
churches  of  those  synods,  which  churches  were  originally  attached 


620 

to  the  Presbytery  of  Albany,  and  some  of  them  indeed  to  the  Pres- 
bytery  of  J\'eu)  York,  when  it  embraced  the  whole  Stiile,  before  the 
erection  of  the  Presbytery  of  Albany,  and  before  the  organization  of  the 
Geiieral  Assembly.  And  the  history  of  those  Presbyterian  Churches 
is  traced  in  the  documents  submitted  to  the  court,  in  their  being  re- 
ported annunlly  to  the  highest  judicatory  of  the  church,  from  the 
year  17*J0,  to  the  present  time.  These  are  among  the  churches  ex- 
cinded  by  the  acts  of  1837,  and  declared  to  be  "tjo  part  of  the  Pres- 
byterian Church.'''' 

In  relaiion  to  authority,  in  the  way  of  judicial  decisions  respect- 
ing the  power  of  the  courts  to  take  cognizance  of  ecclesiastical 
wrongs  in  this  country,  when  the  bodies  committing  them  are  in- 
corporated, I  have  several  cases  to  my  purpose  before  me,  and  will 
read  one  from  this  volume  of  decisions  of  this  ('ourt.  It  is  the  case 
of  the  Commonwealth  of  Pennsylvania  vs.  Richards  and  others,  de- 
cided in  1790,  and  is  referred  to  in  Mr.  Hindman's  case.  [The 
Chief  Justice  here  said,  that  if  Mr.  Randall  read  a  new  case,  it 
would,  perhaps,  elicit  a  reply  from  Mr.  Sergeant,  and  it  would  be 
impossible  to  foresee  when  this  cause  would  be  terminated.  He 
had  better,  therefore,  content  himself,  without  reading.  Mr.  Ran- 
dall said  he  would  do  so,  and  briefly  stated  the  points  in  the  case, 
and  the  decision  of  the  court.]  This,  your  honours  will  see,  is  all 
that  we  could  wish  as  authority,  opposed  to  the  position  of  Mr. 
Sergeant;  and,  as  for  the  case  from  Delaware,  may  it  please  your 
honours,  Mr.  Sergeant  has  read  from  these  notes  a  fart  of  a  deci- 
sion, showing,  indeed,  very  satisfactorily  to  him,  no  doubt,  that  the 
court  declined  jurisdiction  in  that  case  over  the  acts  of  an  ecclesi- 
astical tribunal,  the  presbytery  of  New  Castle.  It  will  be  sufficient 
for  my  purpose,  to  read  to  your  honours  the  part  which  he  omitted. 
[This  Mr.  Ranclall  proceeded  to  do.]  From  this,  then,  it  appears 
that  the  jurisdiction  was  denied,  expressly  on  the  ground  that  it  did 
not  appear  to  the  court  that  it  was  the  incorporated  presbytery  of 
New  Castle,  which  had  performed  the  acts  complained  of,  and  the 
court  said  that  they  would,  otherwise,  have  entertained  jurisdiction. 

Here  the  parties  rested,  and  the  Court  adjourned. 

Wednesday,  May  8th,  1839. 

Chief  Justice  Gibsox  and  Judges  Rodgers  and  Kennedy  were  ob 

the  bench. 

Chief  Justice  Gibson  delivered  the  opinion  of  the  Court  in  this 
case.  It  is  given  below,  with  a  notice  in  brackets  of  variations  on 
one  subject,  between  the  opinion  as  delivered  and  as  subsequently 
officially  published.  This  nOtice  is  supposed  lo  be  due  to  the  parties 
concerned. 

OPINIOX   OF   THE  COURT. 

To  extricate  the  question  from  the  multifarious  mass  of  irrele- 
vant matter  in  which  it  is  enclosed,  we  must,  in  the  first  place, 
ascertain  the  specific  character  of  the  General   Assembly,  and  the 


621 

relation  it  bears  to  the  corporation  which  is  the  immediate  subject 
of  our  cognizance.  This  Assembly  has  been  called  a  quasi  cor- 
poration ;  of  which  it  has  no  feature.  A  quasi  corporation  has 
capacity  to  sue  and  be  sued  as  an  artificial  person  ;  which  the 
Assemhiy  has  not.  It  is  also  established  by  law  ;  which  the  As- 
sembly is  not.  Neither  is  the  Assembly  a  particular  order  or 
rank  in  the  corporatit)n,  though  the  latter  was  created  for  its  con- 
venience; such,  for  instance,  as  the  share-holders  of  a  bank  or 
joint-stock  company,  who  are  an  integrant  part  of  the  body.  It 
is  a  segregated  association,  which,  though  it  is  the  reproductive 
organ  of  corporate  succession,  is  not  itself  a  member  of  the  body  ; 
and  in  that  respect  it  is  anomalous.  Having  no  corporate  quality 
in  itself,  it  is  not  a  subject  of  our  corrective  jurisdiction,  or  of  our 
scrutiny,  farther  than  to  ascertain  how  far  its  organic  structure  may 
bear  on  the  question  of  its  personal  identity  or  individuality.  By 
the  charter  of  the  corporation,  of  which  it  is  the  handmaid  and 
nurse,  it  has  a  limited  capacity  to  create  vacancies  in  it,  and  an 
unlimited  power  over  the  form  and  manner  of  choice  in  filling 
them.  It  would  be  sufficient  for  the  civil  tribunals,  therefore,  that 
the  assembled  commissioners  had  constituted  an  actual  body  ;  and 
that  it  had  made  its  appointment  in  its  own  way,  without  re- 
gard to  its  fairness  in  respect  to  its  members  :  with  this  limita- 
tion, however,  that  it  had  the  assent  of  the  constitutional  majority, 
of  which  the  official  act  of  authentication  would  be  at  least,  p7'/mrt 
facie  evidence.  It  w^ould  be  immaterial  to  the  legality  of  the 
choice  that  the  majority  had  expelled  the  minority,  provided  a 
majority  of  the  whole  body  concurred  in  the  choice.  This  may 
be  safely  predicated  of  an  undivided  Assembly,  and  it  would  be  an 
unerring  test  in  the  case  of  a  division  could  a  quorum  not  be  con- 
stituted of  less  than  such  a  majority;  but  unfortunately,  a  quorum 
of  the  General  Assemhiy  may  be  constituted  of  a  very  small  mino- 
rity, so  that  two,  or  even  more,  distinct  parts  may  have  all  the 
external  organs  of  legitimate  existence.  Hence,  where,  as  in  this 
instance,  the  members  have  formed  themselves  into  separate  bodies, 
numerically  sufficient  for  corporate  capacity  and  organic  action, 
it  becomes  necessary  to  ascertain  how  far  either  of  them  was 
formed  in  obedience  to  the  conventional  law  of  the  association, 
which,  for  that  purpose  only,  is  to  be  treated  as  a  rule  of  civil 
obligation. 

The  division  which,  for  purposes  of  designation,  it  is  convenient 
to  call  the  Old  School  party,  was  certainly  organized  in  obedience 
to  the  established  order;  and,  to  legitimate  the  separate  organiza- 
tion of  its  rival,  in  contravention,  as  it  certainly  was  of  every 
thing  like  precedent,  would  require  the  presentation  of  a  very 
urgent  emergency.  At  the  stated  time  and  place  for  the  opening  of 
the  session,  the  parties  assembled,  without  any  ostensible  division; 
and,  when  the  organization  of  the  whole  had  proceeded  to  a  cer- 
tain point,  by  the  instrumentality  of  the  moderator  of  the  preceding 
session,  who,  for  that  purpose,  was  the  constitutional  organ,  a  pro- 
visional moderator  was  suddenly  chosen  [on  the  motion  of  an  indivi- 
dual who  had  not  been  reported  or  enrolled  as  a  member,  and  by  a  mi- 


622 

nority  of  those  who  actually  voted,  including  several  who  were  in  the 
same  predicament  with  the  mover*]  by  a  minority  of  those  who  could 
be  entitled  to  vole,  including  tlie  excinded  commissioners.  The 
question  on  the  motion  lo  elect,  was  put,  not  by  the  chair,  but  by 
the  mover  himself;  afier  which,  the  seceding  party  elected  a  per- 
manent moderator,  and  immediately  withdrew,  leaving  the  other 
party  to  finish  its  process  of  organization,  by  the  choice  of  its 
moderator  for  the  session. 

]n  justification  of  this  apparent  irregularity,  it  is  urged  that  the 
constitutional  moderator  had  refused  an  appeal  to  tlie  commis- 
sioners in  attendance,  from  his  decision,  which  had  excluded  Irom 
the  roll,  the  names  o''  certain  commissioners  who  had  been  uncon- 
stitutionally severed,  as  it  is  alleged,  from  the  Presbyterian  con- 
nexion l)y  a  vote  of  the  preceding  session.  It  is  conceded  by  the 
argument,  that  if  the  synods  with  the  dependent  presbyteries  by 
which  those  commissioners  were  sent,  had  been  constitutionally 
dissolved,  the  motion  [made  by  an  excinded  memberf]  was  one 
which  the  moderator  was  not  bound  to  put,  or  the  commissioners 
to  notice;  and  that  whatever  implication  of  assent  to  the  decision 
which  ensued,  might  otherwise  be  deduced  from  the  silence  of  those 
who  refused  to  speak  out,  about  which  it  will  be  necessary  to  say 
soineihing  in  the  sequel,  there  was  no  room  for  any  such  implication 
in  the  particular  instance.  It  would  follow  also,  that  there  was  no 
pretence  for  the  deposal  of  the  moderator,  if  indeed  such  a  thing 
could  be  legitimated  by  any  circumstances,  for  refusing  an  appeal 
from  his  exclusion  of  those  who  had  not  colour  of  title,  and,  con- 
sequently, tliat  what  else  might  be  reform,  would  be  revolution. 
And  this  leads  to  an  inquiry  into  the  constitutionality  of  the  act  of 
excision. 

The  sentence  of  excision,  as  it  has  been  called,  was  nothing  else 
than  an  ordinance  of  dissolution.  It  bore  that  the  synods  in  ques- 
tion, having  been  formed  and  attached  to  the  body  of  the  Presby- 
terian Church  under,  and  in  execution  of,  the  Plan  of  Union,  "be, 
and  are  hereby  declared  lo  be,  out  of  the  ecclesiastical  connexion 
of  the  Presbyterian  Church  in  the  United  States  of  America;  and 
that  they  are  not  in  form  or  in  fact,  an  integral  portion  of  said 
church."  Now  it  will  not  be  said  that  if  the  dissolved  synods  had 
no  other  basis  than  the  Plan  of  Union,  they  did  not  necessarily  fall 
along  with  it,  and  it  is  not  pretended  that  the  Assembly  was  incom- 
petent to  repeal  the  union  prospectively,  but  it  is  contended  that  the 
repeal  could  not  impair  rights  of  metnbership  which  had  grown  up 
under  it.  On  the  other  hand,  it  is  contended  that  the  Plan  of  Union 
was  unconstitutional  and  void  from  the  beginning,  because  it  was  not 
submitted  to  the  presbyteries  for  their  sanction;  and  that  no  right 
of  membership  could  spring  from  it.  But  viewed,  not  as  a  consti- 
tutional regulation,  which  implies  permanency  of  duration,  but  as  a 
temporary  expedient,  it  acquired  the  force  of  a  law  without  the  ra- 


*  Wtiat  follows,  of  this  sentence,  substituted  in  the  published  opinion,  for  the  por- 
tion in  biackets. 
f  Omitted  in  the  publlbhed  opinion. 


623 

tificafion  of  those  bodies.  It  was  evidently  not  intended  to  he  per- 
manent, and  it  consequently  was  constitution!) Ily  enacted  and  con- 
stitutionally repealed  by  an  ordinary  act  of  legishitioii ;  and  those 
synods  which  tiad  their  root  in  it,  could  not  be  exf)ected  to  survive 
it.  There  never  was  a  design  to  attempt  an  ainalgarnation  of  ec- 
clesiastical {)rinciples  which  aie  as  immiscible  as  water  and  oil; 
much  less  to  effect  a  commixture  of  them  only  at  particular  geo- 
graphical points.  Such  an  attempt  would  have  compromised  a 
principle  at  the  very  root  of  Presbyterian  government,  which  requires 
that  the  officers  of  the  church  be  set  apart  by  special  ordination  for 
the  work.  Now  the  character  of  the  plan  is  palpable,  not  only  in 
its  title  and  provisions,  but  in  the  minute  of  its  introduction  into'the 
Assembly.  We  find  in  the  [jroccedings  of  1801,  page  2.56,  that  a 
committee  was  raised  "  to  consider  and  digest  a  plan  of  government 
for  the  churches  in  the  neio  settlements  agreeably  to  the  proposal  of 
the  General  Association  of  Connecticut ;"  and  that  the  plan  adopted 
in  conformity  to  its  report,  is  called  "  a  Plan  of  Union  for  the  new 
settlements."  The  avowed  object  of  it  was  to  prevent  alienation; 
in  other  words,  the  affiliation  of  Presbyterians  in  other  churches, 
by  suffering  those  who  were  yet  loo  few  and  too  poor  for  the  main- 
tenance of  a  minister,  temporarily  to  call  to  their  assistance  the 
members  of  a  sect  who  differed  from  them  in  principles,  not  of  faith, 
but  of  ecclesiastical  government.  To  that  end,  Presbyterian  minis- 
ters were  suffered  to  preach  to  Congregational  Churches,  while 
Presbyterian  Churches  were  suffered  to  settle  (A>ngregational  mi- 
nisters; and  mixed  congregations  were  allowed  to  settle  a  Presby- 
terian or  a  Congregational  minister  at  their  election,  but  under  a 
plan  of  governn)ent  and  discipline  adapted  to  the  circinnstances. 
Surely  this  was  not  intended  to  outlast  the  inability  of  the  respec- 
tive sects  to  provide  separately  for  themselves,  or  to  perpetuate  the 
innovations  on  Presbyterial  government  which  it  was  calculated  to 
produce.  It  was  obviously  a  missionary  arrangement  from  the 
first;  and  they  who  built  up  presbyteries  and  synods  on  the  basis 
of  if,  had  no  reason  to  expect  that  their  structures  would  survive  it, 
or  that  Congregaticmalists  might,  by  force  of  it,  gain  a  foothold  in 
the  Presbyterian  ('hurch,  despite  of  Presbyterial  discipline.  They 
embraced  it  with  all  its  defeasible  properties  plainly  put  before 
them;  and  the  power  which  constituted  it,  might  fairly  repeal  it, 
and  dissolve  the  bodies  that  had  grown  out  of  it,  whenever  the  o-ood 
of  the  church  should  seem  to  require  it. 

Could  the  synods,  however,  be  dissolved  by  a  legislative  act?  I 
know  not  how  they  could  have  been  legitimately  dissolved,  by  any 
other.  The  Assembly  is  a  homogeneous  body,  uniting  in  itself, 
without  separation  of  parts,  the  legislative,  executive  and  judicial 
functions  of  the  government;  and  its  acts  are  referable  to  the  one 
or  the  other  of  them,  according  to  the  capacity  in  which  it  .^at  when 
they  were  [)erformed.  Now,  had  the  excluded  synods  been  cut  off 
by  a  judicial  sentence,  without  hearing  or  notice,  the  act  would 
have  been  contr?iry  to  the  cardinal  principles  of  natural  justice,  and 
consequently  void.     But,  though  it  was  at  first  resolved  to  proceed 


624 

judicially,  the  measure  was  abandoned  ;  probably  because  it  came 
to  be  perceived  that  the  synods  had  committed  no  offence. 

A  glance  at  the  Plan  of  Union,  is  enough  to  convince  us  that  the 
disorder  had  come  in  with  the  sanction  of  the  Assembly  itself.  The 
first  article  directed  missionaries,  (the  word  is  significant,)  to  the 
new  settlements,  to  promote  a  good  understanding  betwixt  the 
kindred  sects.  The  second  and  third  permitted  a  Presbyterian 
congregation  to  settle  a  Congregational  minister,  or  a  Presbyterian 
minister  to  be  settled  by  a  Congregational  church!  but  these  pro- 
vided for  no  recognition  of  the  people  in  charge  as  a  part  of  the 
Vresbyterian  body ;  at  least  they  gave  them  no  representation  in 
its  government.  But  the  fourth  allowed  a  mixed  congregation  to 
settle  a  minister  of  either  denomination ;  and  it  committed  the  go- 
vernment of  it  to  a  standing  committee,  but  with  a  right  to  appeal 
to  the  body  of  male  communicants,  if  the  appellant  were  a  Congre- 
gationalist,  or  to  the  presbytery,  if  he  were  a  Presbyterian.  Now 
it  is  evident  the  Assembly  designed  that  every  such  congregation 
should  belong  to  a  presbytery,  as  an  integrant  part  of  it;  for  if  its 
-minister  were  a  Congregationalist,  in  no  way  connected  with  the 
Presbyterian  Church,  it  would  be  impossible  to  refer  the  appellate 
jurisdiction  to  any  presbytery  in  particular.  This  alone  would 
show,  that  it  was  designed  to  place  such  a  congregation  in  ecclesi- 
astical connexion  with  the  presbytery  of  the  district;  but  this  is  not 
all.  It  was  expressly  provided,  in  conclusion,  that  if  the  "  said 
standing  committee  of  any  church,  shall  depute  one  of  themselves 
to  attend  the  presbytery,  he  may  have  the  same  right  to  sit  and  act 
in  the  presbytery  as  a  ruling  elder  of  the  Presbyterian  Church." 
For  what  purpose,  if  the  congregation  were  not  in  Presbyterial  fel- 
lowship? 

It  is  said  that  this  jus  representationis  was  predicated  of  the  ap- 
peal precedently  mentioned ;  and  that  the  exercise  of  it  was  to  be 
restrained  to  the  trial  of  it.  The  words,  however,  were  predicated 
without  restriction;  and  an  implied  limitation  of  their  meaning, 
would  impute  to  the  Assembly  the  injustice  of  allowing  a  party  to 
sit  in  his  own  cause,  by  introducing  into  the  composition  of  the  ap- 
pellate court,  a  part  of  the  subordinate  one.  That  such  an  impli- 
cation would  be  inconsistent  with  the  temper  displayed  by  the  As- 
sembly on  other  occasions,  is  proved  by  the  order  which  it  took  as 
early  as  1791,  in  the  case  of  an  appeal  from  the  sentence  of  the 
Synod  of  Philadelphia,  whose  members  it  prevented  from  voting  on 
the  question,  (Assembly's  Digest,  p.  332,)  as  well  as  by  its  general 
provision,  that  "  members  of  a  judicatory  may  not  vote  in  the  supe- 
rior judicatory  on  a  question  of  approving  or  disapproving  their  re- 
cords."    (Id.  page  333.) 

The  principle  has  since  become  a  rule  of  the  constitution,  as  ap- 
pears by  the  Book  of  Discipline,  Chap.  vii.  sect.  3,  paragraph  12. 
As  the  representatives  of  those  anomalous  congregations,  therefore, 
could  not  sit  in  judgment  on  their  own  controversies,  it  is  pretty 
clear  that  it  was  intended  they  should  be  represented  generally,  else 
they  would  not  be  represented  at  all  in  the  councils  of  the  church, 
by  those  who  might  not  be  Presbyterians;  and  that  to  eflisct  it,  the 


625 

principle  of  Presbyterial  ordination  was  to  be  relaxed,  as  regards 
both  the  ministry  and  eldership;  and  it  is  equally  clear,  that  had 
the  synods  been  cited  to  answer  for  the  consequent  relaxation  as 
an  offence,  they  might  have  triumphantly  appeared  at  the  bar  of 
the  Assembly  with  the  Plan  of  Union  in  their  hand.  That  body, 
however,  resorted  to  the  only  constitutional  remedy  in  its  power;  it 
fell  back,  so  to  speak,  on  its  legislative  jurisdiction,  in  the  exercise 
of  which,  the  synods  were  competently  represented,  and  heard  by 
their  commissioners. 

Now  the  apparent  injustice  of  the  measure  arises  from  the  con- 
templation of  it  as  a  judicial  sentence  pronounced  against  parties 
•who  were  neither  cited  nor  heard  ;  which  it  evidently  was  not. 
Even  as  a  legislative  act,  it  may  have  been  a  hard  one,  though 
certainly  constitutional,  and  strictly  just.  It  was  impossible  to  era- 
dicate the  disorder  by  any  thing  less  than  a  dissolution  of  those 
bodies  with  whose  existence  its  roots  were  so  intertwined  as  to  be 
inseparable  from  it,  leaving  their  elements  to  form  new  and  less 
heterogeneous  combinations.  Though  deprived  of  presbyterial  or- 
ganization, the  Presbyterian  parts  were  not  excluded  from  the 
church,  provision  being  made  for  them,  by  allowing  them  to  attach 
themselves  to  the  nearest  presbytery. 

It  is  said  there  is  not  sufficient  evidence  to  establish  the  fact  that 
the  excinded  synods  had  actually  been  constituted  on  the  Plan  of 
Union,  in  order  to  have  given  the  Assembly  even  legislative  juris- 
diction. The  testimony  of  the  Rev.  Mr.  Squier,  however,  shows 
that  in  some  of  the  three  which  were  within  the  state  of  New 
York,  congregations  were  sometimes  constituted  without  elders ; 
and  the  Synod  of  the  Western  Reserve,  when  charged  with  delin- 
quency on  that  head,  instead  of  denying  the  fact,  promptly  pointed 
to  the  Plan  of  Union  for  its  justification.  But  what  matters  it 
whether  the  fact  were  actually  what  the  Assembly  supposed  it  to 
be  ?  If  that  body  proceeded  in  good  faith,  the  validity  of  its  enact- 
ment cannot  depend  on  the  justness  of  its  conclusion.  We  have, 
as  already  remarked,  no  authority  to  rejudge  its  judgments  on  their 
merits  ;  and  this  principle  was  asserted  with  conclusive  force  by 
the  presiding  judge  who  tried  the  cause.  Upon  an  objection  made 
to  an  inquiry  into  the  composition  of  the  Presbytery  of  Medina,  it 
was  ruled  that  "  with  the  reasons  for  the  proceedings  of  1837,  (the 
act  of  excision,)  we  have  nothing  to  do.  We  are  to  determine 
only  what  was  done :  the  reasons  of  those  who  did  it  are  imma- 
terial. If  the  acts  complained  of  were  within  the  jurisdiction  of  the 
Assembly,  their  decision  must  be  final,  though  they  decided  wrong." 
This  was  predicated  of  judicial  jurisdiction,  but  the  principle  is  ne- 
cessarily as  applicable  to  jurisdiction  for  purposes  of  legislation.  I 
cite  the  passage,  however,  to  show  that  after  a  successful  resistance 
to  the  introduction  of  evidence  of  the  fact,  it  lies  not  with  the  rela- 
tors to  allege  the  want  of  it. 

If  then  the  synods  in  question  were  constitutionally  dissolved,  the 
presbyteries  of  which  they  had  been  composed,  were,  at  least,  fi)r 
purposes  of  representation,  dissolved  along  with  them  ;  for  no  ptes- 
bvterv  can  be  in  connexion  with  the  General  Assembly,  unless  it 

53 


626 

be  at  the  same  time  subordinate  to  a  synod  also  in  connexion  with 
it,  because  an  appeal  from  its  judgment  can  reach  the  tribunal  of 
the  last  resort  only  through  that  channel.  It  is  immaterial  that  the 
presbyteries  are  the  electors;  a  synod  is  a  part  of  the  machinery 
which  isindispensable  to  the  existenceof  every  branch  of  the  church. 
It  appears,  therefore,  that  the  commissioners  frrjm  the  excinded 
synods,  were  not  entitled  to  seats  in  the  Assembly,  and  that  their 
names  were  properly  excluded  from  the  roll. 

The  inquiry  might  be  rested  here  ;  for  if  there  were  no  colour  of 
right  in  them,  there  was  no  colour  of  right  in  the  adversary  pro- 
ceedings which  were  founded  on  their  exclusion.  But  even  if  their 
title  were  clear,  the  refusal  of  an  appeal  from  the  decision  of  the 
moderator,  would  be  no  ground  for  the  degradation  of  the  officer 
at  the  call  of  a  minority:  nor  could  it  impose  on  the  majority  an- 
obligation  to  vote  on  a  question  put  unofficially,  and  out  of  the  usual 
course;  To  all  questions  put  by  the  established  organ,  it  is  the  duty 
of  every  member  to  respond,  or  be  counted  with  the  greater  num- 
ber, because  he  is  supposed  to  have  assented  beforehand  to  the 
result  of  the  process  pre-established  to  ascertain  the  general  will ; 
but  the  rule  of  implied  assent  is  certainly  inapplicable  to  a  measure 
which,  when  justifinble  even  by  extreme  necessity,  is  essentially 
revolutionary,  and  based  on  no  pre-established  process  of  ascer- 
tainment whatever. 

To  apply  it  to  an  extreme  case  of  inorganic  action,  as  was  done 
here,  might  work  the  degradation  of  any  presiding  officer  in  our 
legislative  halls,  by  ihe  motion  and  actual  vote  of  a  single  member. 
sustained  by  the  constructive  votes  of  all  the  rest;  and  though  such 
an  enterprise  may  never  be  attempted,  it  shows  the  danger  of  re- 
sorting to  a  conventiomi!  rule,  when  the  body  rs  to  be  resolved  into  its 
original  eletiients,  and  its  rules  and  conventions  to  be  superseded, 
by  the  very  motion.  For  this  reason,  the  choice  of  a  moderator  to 
supplant  the  officer  in  the  chair,  even  if  he  were  removeable  at 
the  pleasure  of  the  commissioners,  would  seem  to  have  been 
unconstitutional. 

But  he  was  not  removeable  by  ihem,  because  he  had  not  derived 
his  office  from  them;  nor  was  he  answerable  to  them  for  the  use  of 
his  power.  He  was  not  their  moderator.  He  was  the  mechanical 
instrument  of  ilieir  organization  ;  and  till  that  was  accomplished, 
thioy  v»ere  subject  to  his  rule — not  he  to  theirs.  They  were  chosen 
by  the  authority  of  iiis  mandate,  and  with  the  power  of  self-organi- 
zation, only  in  the  event  of  his  absence  at  the  opening  of  the  session. 
Corporally  present  but  refusing  to  perform  his  function,  he  might  be 
deemed  constructively  absent,  for  constitutional  purposes,  insomuch 
that  the  commissioners  might  proceed  to  the  choice  of  a  substitute 
without  him  ;  but  not  if  he  had  entered  on  the  performance  of  his 
task  ;  and  tlie  reason  is  that  the  decision  of  such  questions  as  were 
prematurely  pressed  here,  is  proper  for  the  decision  of  the  body 
when  preprred  for  organic  action,  which  it  cannot  be  before  it  is 
fully  const'tu  ed  and  under  the  presidency  of  its  own  moderator,  the 
moderator  of  the  preceding  session  he\ng  functus  officio.  There  can 
be  no  occasion  for  its  action  sooner;  for  though  the  commissioners 


627 

are  necessarily  called  upon  to  vote  for  their  moderator,  their  action 
is  not  organic,  but  individual.  Doctor  Mason's  motion  and  ap- 
peal, though  the  clerks  had  reported  the  roll,  were  premature; 
for  though  it  is  declared  in  the  twelfth  chapter  of  the  Form  of 
Government,  that  no  commissioner  shall  deliberate  or  vote  before 
his  name  shall  have  been  enrolled,  it  follows  not  that  the  capacity, 
consummated  by  enrolment  was  expected  to  be  exercised  during 
any  part  of  the  process  of  organization,  but  the  choice  of  a  mode- 
rator; and  moreover,  the  provision  may  have  been  intended  for  the 
case  of  a  commissioner  appearing  for  the  firsi  time,  when  the  house 
■was  constituted. 

Many  instances  may  doubtless  be  found  among  the  minutes,  r-.f 
motions  entertained  previously,  for  our  public  bodies,  whether  le- 
gislative or  judicial,  secular  or  ecclesiastical,  are  loo  prone  to  forget 
the  golden  precept — "  Let  all  things  be  done  decently  and  in  order.'' 
But  these  are  merely  instances  of  irregularity  which  have  passed, 
sub  silentio,  and  which  cannot  change  a  rule  of  positive  enactment. 
It  seems  then  that  an  appeal  from  the  decision  of  the  moderator  did 
not  lie;  and  that  he  incurred  no  penalty  by  the  disallowance  of  it. 
The  title  of  the  excluded  commissioners  could  be  determined  only 
by  the  action  of  the  house,  which  could  not  be  had  before  its  or- 
ganization was  complete;  and  in  the  mean  time  he  was  bound,  as 
the  executive  instrument  of  the  preceding  Assembly,  to  put  its  or- 
dinance into  execution:  for  to  the  actual  Assemibly,  and  not  to  the 
moderator  of  the  preceding  one,  it  belonged  to  repeal  it. 

It  would  be  decisive,  however,  that  the  motion,  as  it  was  pro- 
posed, purported  not  to  be  in  fact  a  question  of  degradation  for  the 
disallowance  of  an  appeal,  but  one  of  new  and  indejiendent  organi- 
zation. It  was,  ostensibly  as  well  as  actually,  a  measure  of  tran- 
scendental power,  whose  purpose  was  to  treat  the  orcinance  of  the 
preceding  Assembly  as  a  nullity,  and  its  moderator  as  a  nonentity. 
It  had  been  prepared  for  the  event  avowedly  before  the  meeting. 
The  witnesses  concur  that  it  was  propounded  as  a  measure  of  ori- 
ginal organization  transcending  the  customary  order;  and  not  as 
a  recourse  to  the  ultima  ratio  for  a  specific  violation  of  it.  The 
ground  of  the  motion,  as  it  was  opened  by  the  mover,  was  not  the 
disallov^-ance  of  an  appeal,  which  alone  could  afibrd  a  pretext  of 
forfeiture,  but  the  fact  of  exclusion.  To  affect  silent  members  with 
an  implication  of  assent,  however,  the  ground  of  the  motion  and 
nature  of  the  question  must  be  so  explicitly  put  before  them  as  U* 
prevent  misconception  or  mistake;  and  the  remarks  that  heraldei! 
the  question  in  this  instance,  pointed  at,  not  a  removal  of  the  pre- 
siding incumbent,  but  a  separate  organization  to  be  accomplished 
with  the  least  practicable  interruption  of  the  business  in  hand;  and 
if  they  indicated  any  thing  else,  they  were  deceptive.  The  mea- 
sure was  proposed  not  as  that  of  the  body,  but  as  the  measure  of  a 
party  ;  and  the  cause  assigned  for  not  having  proposed  it  elsewhere, 
was  that  individuals  of  the  party  had  been  instructed  by  counsel 
that  the  purpose  of  it  could  not  be  legally  accomplished  in  any 
other  place.  No  witness  speaks  of  a  motion  to  degrade:  and  the 
rapidity  of  the  process  by  which  the  choice  of  a  substitute,  not  a 


628 

successor,  was  affected,  left  no  space  for  reflection  or  debate.  Now 
before  the  passive  commissioners  could  be  affected  by  acquiescence 
implied  from  their  silence,  it  ought  to  have  appeared  that  they  were 
apprised  of  what  was  going  on ;  but  it  appears  that  even  an  atten- 
tive ear-witness  was  unable  to  understand  what  was  done.  The 
whole  scene  was  one  of  unprecedented  haste,  insomuch  that  it  is 
still  a  matter  of  doubt  how  the  questions  were  put.  Now,  though 
these  facts  were  fairly  put  to  the  jury,  it  is  impossible  not  to  see, 
that  the  verdict  is,  in  this  respect,  manifestly  against  the  current  of 
the  evidence. 

Other  corroborative  views  have  been  suggested;  but  it  is  difficult 
to  compress  a  decision  of  the  leading  points  in  this  case  into  the  old 
fashioned  limits  of  a  judicial  opinion.  The  preceding  observations, 
however,  are  deemed  enough  to  show  the  grounds  on  which  we 
hold  that  the  Assembly  which  met  in  tfie  First  Presbyterian  Church 
was  not  the  legitimate  successor  of  the  Assembly  of  1837;  and  that 
the  defendants  are  not  guilty  of  the  usurpation  with  which  they  are 
charged. 

The  rule  for  a  new  trial  must  be  made  absolute. 

Judge  Rogers  then  said — "After  the  patient  and  impartial  in- 
vestigation, by  me,  of  this  cause,  at  Nisi  Prius,  and  in  bank,  I  have 
nothing  at  this  time  to  add,  except  that  my  opinion  remains  un- 
changed on  all  the  points  ruled  at  the  trial.  This  explanation  is 
deemed  requisite  in  justice  to  myself,  and  because  it  has  become 
necessary  (in  a  case,  in  some  respects,  without  precedent,  and  pre- 
senting some  extraordinary  features)  to  prevent  misapprehension, 
and  misrepresentation. 


THE    END. 


1  i     r''>  -' , 


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